Sunday, January 31, 2021
As I commence another semester teaching workers’ compensation law, blissfully if artificially abstracted from Covid contexts, I find myself befuddled by a fundamental and, I naïvely had imagined, simple question: why did state workers’ compensation statutes ever include an accident requirement?
As workers’ compensation specialists know, the standard workers’ compensation coverage formula (in most but not all states) is something like, “incapacity for work is covered if resulting from a personal injury by accident arising out of and in the course of employment.” Many insiders understand that functionally the formula has operated historically to exclude certain categories of arguably work-related injuries—notably cumulative and repetitive injuries, and disease. Often, courts will dramatically remind readers that workers’ compensation was never meant to be “general health insurance.” Yet states that have foregone the accident requirement altogether—e.g, Massachusetts, Maine, Wyoming—do not somehow reject workplace causal connection as a requirement for coverage, so the “general health insurance” quip is somewhat hyperbolic. Under black-letter workers’ compensation law an “accident” is an event that occurs “unexpectedly” at a “definite time” (or something of the like). Where the accident concept is applicable, the law can (and does) complicate matters by (depending on the state) asking whether by “unexpected” one means that the cause of the injury was unexpected, or that the result/disability was unexpected. Courts also ask whether by “definite time” one means that the injury occurred at a definite time or that the out-of-work disability occurred at a definite time. The questions are prickly, and states’ laws on these conceptual rivulets are often inconsistent. I will be pushing my students on the “stickiness” of this doctrine in the upcoming week.
But I have a different question that I am thinking about. The “injury by accident” language came to the American statutes from the original English workers’ compensation statutes of 1897 and 1906. I am beginning to think the purpose of the “accident” language was not to limit coverage of workers’ compensation claims but to provide notice of expanded employer liability, to make clear that even though the injury was “merely” an accident—and therefore not actionable in negligence—the worker nevertheless had a "claim" (an unusual proposition in 1897). In the language of the old 1906 English statute at Section 1:
If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as herein-after mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.
But the exclusion of nonaccidental injury takes on quite a different tenor when one considers that it is being juxtaposed to negligence. In the same Section the statute reads:
When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid . . (emphases supplied)
So the prototypical English Act contemplated that a worker injured by accident had a workers’ compensation claim. But it also went on to say that non-accidentally injured workers (or their statutory successors, in the case of death) could elect to pursue their employers in negligence (“civil liability”). The employee could not pursue both courses of legal action, and exclusivity applied except in the case of the employer’s “personal negligence” or “wilful act.” Read in this way, the term “accident” was simply acting as a foil to “negligence.” It had no independent significance as an exclusionary or “cost controlling” device.
It is true enough that the original architects of the language probably only had on their minds coverage of single-episode, traumatic workplace injuries. But it is difficult to draw from this fact that they meant not to cover, e.g., cumulative injuries. And precisely because cumulative injuries were not being considered, it is difficult to imagine that the “accident” element was originally meant to exclude them (or anything like them).
Maybe this does have a Covid connection. To the extent that Covid claims are deemed not to be covered by workers’ compensation (as occupational diseases or otherwise) because contraction of Covid is not an “accident” (leaving causation questions to one side), it is questionable that non-coverage is consistent with “what workers’ compensation was originally meant to be." The accident requirement (functionally an exclusion) may simply be a reflexive carryover from the original statute that we have not critically thought about – at least not critically enough. Who will be the last to die for an historical accident?
Michael C. Duff