Saturday, April 14, 2018
Last week, WorkCompCentral ran a story on cumulative trauma claim-filing in California (behind a paywall here). The story, and readers’ comments following the story, revealed the sharp differences of opinion on whether and why there have been increases in cumulative trauma claims in that state. I do not want to wade into the empirical debate. Rather, I want to share some thoughts about why cumulative trauma cases are simply legally hard.
When (and how) did the straw break the camel’s back? The truth of the matter is that in many instances we simply cannot know. One has arthritis in one’s joints. One also works with one’s hands over a period of years. At a certain point, disability for work manifests itself. One doctor says that work made a major/substantial/significant contribution to the present disability. Another doctor says the present disability is completely unrelated to work
The truth is often somewhere in the middle. I, for example, was a heavy laborer for 15 years before heading off to law school. I hurt my back several times. If I can’t get out of bed tomorrow to teach my workers’ compensation class, could I prove that my disability that day “arises out of” my present employment? I’m a law professor – not exactly a contact sport. Are there times when standing in one spot while teaching aggravates my back pain (which has never completely gone away since my first injury at age 23)? Certainly. Do I have a preexisting, non-occupational back condition? Probably. Would any of my present symptoms be in existence were it not for my prior occupational injuries from decades ago. Probably not. The point is – it is complicated. And a legal system’s evaluation of disability considering these complexities will be unpredictable. No “evidence-based science” can tell me my back does not hurt.
I cover joint causation—as we would term this problem in tort vocabulary—with my students every year in first-year torts class. Two negligently created fires (often caused by locomotives in the early cases) descend simultaneously upon a lonely farmhouse and burn it to the ground. Under a traditional “but for” causation test, who would pay for the resulting damage? Surprisingly, possibly no one. If we remove the conduct of negligent actor #1, does the harm still occur? Yes – because of the negligence of actor #2: it cannot be said that “but for” the negligence of actor #1, the harm would not have occurred to the plaintiff/owner of the farmhouse. But negligent actor #2 may make the same argument: it cannot be said that but for the negligence of actor #2, the harm would not have occurred. One was left with the scarecrow from Wizard of Oz pointing in both directions. In the meantime, we have a burned-out farmhouse. What can we do? Some say the harm must fall on the farmer: better he or she bear the loss than that unfairness results. But wait a minute. We had two negligent actors (which we assume for this hypothetical). How can there be no recovery? Talk about unfairness! Because of this “but for” result—a wrong being left completely unremedied—some “jurisprudents” came up with a different solution. If either actor’s negligence was a “substantial factor” in bringing about the plaintiff’s harm, each would be jointly and severally liable for plaintiff’s harm. (They could decide in a separate action how to apportion damages between themselves, but the plaintiff was only required to pursue one of the joint tortfeasors for all the damages).
From the perspective of a defendant, this is an unfair outcome, especially if the definition of “substantial” is unclear, or too easy for plaintiffs to establish. But, from a plaintiff’s perspective, in the absence of such a rule, negligent actors—those who have breached a standard of care or legal duty—would otherwise be let off the hook completely. Then, the entirety of the loss would fall on the plaintiff. From the plaintiff’s perspective it is sour grapes for defendants to be heard complaining about paying for the costs of harms they (at the least) helped to create.
Back to cumulative trauma in workers’ compensation cases. (Workers’ compensation is a no-fault but not a no-causation system). Assume we have cause #1 of disability, work-related microtrauma over potentially a long period of time, and cause #2 of disability, non-work-related trauma (or, even more simply, aging or degeneration). Someone is going to pay for the disability in this joint (or multiple) cause situation. When we construct legal rules—say we insist that the disability will not be covered by workers’ compensation unless the major contributing cause to its manifestation is one or more identifiable work events—we are making a policy choice that cause #2 will be responsible for the costs of disability. That is, the costs will be borne by the disabled individual (or the public at large) rather than by the industry employing the worker. The problem is that legal rules often operate “covertly.” It is often not clearly seen by the casual observer in which direction liability is being tossed. I think it would be far better to hold cost-allocating discussions out in the open. We all know that is not what happens.
I will conclude by noting how prescient was the German Workers’ Compensation Act of 1884. Although that act is sometimes cursorily described as “social insurance,” that description hardly does the statute justice. It was in fact a law establishing an intricate unitary system taking up explicitly, in three separate headings, “Sickness,” “Accident,” and “Disability.” To me, the benefit of such a structure is the explicit way it insures various types of incapacity for work. One would not spend time in high-stakes (and expensive!) finagling over whether an “accident” has occurred or what, precisely, “caused” the incapacity. Different expenses were charged to the appropriate categories, and the entire expense—whether privately insured or paid by the state (both approaches were used within the same statute)—was considered at the front end of the process.
I suppose I might have some objection under such a system to the loss of any concept of a “wrong” that produced the worker’s incapacity in the first place. I do not mean “wrong” in an individual case, of course—we abandon that idea within America workers’ compensation, in any event. No—I mean the notion that, in the abstract, a worker was surrendering a valuable civil cause of action premised on commission of a wrong in exchange for participating in the system. Still, the structure is somewhat reminiscent of 24-hour wraparound plans that were under much discussion in the 1990s. Ultimately, in present times, one would have to do a very careful cost-benefit analysis to determine if such an idea would pass the straight face test. But I doubt the problem of cumulative trauma would seem quite as intractable as it sometimes does now.
Michael C. Duff