Saturday, December 14, 2019
I had the privilege and honor of presenting on this subject on December 12 on a panel at the National Council of Insurance Legislators' Annual Meeting. My co-panelists were Robert Stokes of the law firm Flahive, Ogden & Latson; and Glenn Deshields, Legislative Director of the Texas State Association of Fire Fighters. The main points I attempted to make were first that PTSD could not reasonably have been part of the original workers' compensation quid pro quo because negligent infliction of emotional distress was in its infancy as a tort cause of action. It makes sense to me that PTSD would expand under workers' compensation as negligent infliction of emotional distress expanded under tort. And when you have claimants like first responders held in universally high regard, a "bridge" is formed that permits policy expansion. I also emphasized a point that David Torrey has made in some of his writings -- there is nothing new about occupational disease presumptions. They existed in the British Act of 1906 and were picked up in New York beginning about 1920. I have some cites in my working paper that may be of interest to researchers.
Whenever policy makers consider expanding workers’ compensation coverage there is concern expressed that expansion risks converting workers’ compensation into general accident or health insurance. It is easy to understand why policy uneasiness may emerge when assessing expanded coverage of arguably work-related disabilities like post-traumatic stress disorder (PTSD), or when debating the option of adopting relaxed workers’ compensation causation standards—"Firefighter Presumptions”—in connection with diseases sustained by law enforcement officials, safety personnel, and first responders. After all, expanded coverage means expanded costs (and, of course, the need to insure against those costs). But workers’ compensation has had a long history of fundamental expansion since its inception over a century ago, often to the point where one can no longer imagine the expansion as not being originally part of the system. Often under the surface, workers’ compensation expansion is tracking similar expansion in tort liability, and the workers’ compensation expansion reflects a perceived need for enhanced tort immunity—though many involved in the debate may not be aware of this dynamic. In other words, increases in workers’ compensation costs are constantly being weighed against the potential for increased tort liability.
To take one broad historical example, many observers of workers’ compensation may be unaware that, in the earliest versions of the American workers’ compensation statutes, circa 1911, no provision at all was made for payment of ongoing medical care in connection with work-related injuries. At that time, workers’ compensation medical benefits were limited to post-injury first aid at the workplace, and perhaps initial medical treatment for, at most, 90 days. The first United Kingdom workers’ compensation statute (of 1897, as amended in 1906—the progenitor of most American statutes did not cover ongoing medical benefits: something akin to national health care for workers was about to arrive on the scene in the U.K. in 1911. The other early workers’ compensation model, German workers’ compensation, established in about 1884, was similarly part of a much broader universal health care insurance system in which work-related medical costs and indemnity payments merged into a broad social insurance structure). The point is that American statutes had to expand to cover ongoing medical treatment for work-related injuries. Few in 2019, however, think of medical coverage for work-related injuries as an “expansion” of the original idea of workers’ compensation. Workers’ compensation “had” to expand because, if American workers’ compensation statutes had not covered the expense of ongoing medical treatment for work-related injuries, that expense would have to have been pursued by workers in tort litigation, with all the expense that process has always entailed. American stakeholders preferred expanded workers’ compensation and tort immunity to expanded tort liability.
Along similar lines, many readers may know that workers’ compensation was originally limited to coverage of extra hazardous employment. One reason for the limitation was that it was not known by state legislatures until 1917 whether the United States Supreme Court would uphold on constitutional grounds a version of the Grand Bargain that included non-hazardous employment. Another reason for states deciding initially to cover only extra hazardous employment was that it was there that the need for workers’ compensation coverage was most acutely felt. (Necessity is often the mother of invention). Eventually, the U.S. Supreme Court very broadly authorized the Grand Bargain—the historic “quid pro quo” of workers’ compensation benefits for tort damages (and defenses). The High-Court authorization solved major problems, but created new ones. Now that states possessed a more-or-less legal blank slate on which to write workers’ compensation law (albeit with some very broad boundaries), they were placed in a position of having to flesh out exactly what the quid pro quo should entail. But states had no hesitation expanding workers’ compensation coverage from solely extra hazardous employment to most employment. And, again, from the perspective of employers, with the costs of workers’ compensation expansion came (and comes) the benefits of expanded tort immunity. There were, of course, other statutory beneficiaries: workers relieved of the time and expense of pursuing tort litigation (to say nothing of workers who would have had no viable tort claims at all); and society-at-large, which benefited from having the costs of workplace injury shifted to producing sectors of the economy (and away from broad taxpayer subsidization), and which also benefited from safer workplaces generally.
The rest of the paper can be found here.
Michael C. Duff