Of Tornado Alleys and Workers’ Compensation

When I wrote the short piece, “Will Workers’ Compensation Work in a Mega-Risk World,” I did not have exactly in mind the overnight death of workers’ at an Amazon facility resulting from freakish (or maybe not so freakish) tornados in mind. But I had something like that in mind: I suspect that pandemics and climate change are related. The families of those workers killed will seek compensation. They will likely have access to a variety of benefits systems. And they will likely be woefully undercompensated. To the extent anything like the negligent construction of the Amazon warehouse, or negligent handling of the aftermath of the calamity begins to surface, we will hear cries that Amazon should be immune from liability as a matter of law because the event was unforeseeable (tornados in December?)—a claim you can believe if you like, but one that loses force the second time around (and I have no doubt there will be a second time around). On the workers’ compensation side of the equation, the defense argument may be that the workplace did not increase the risk of dying because of this “Act of God.” The argument would “work” in some states, but not work in others. I have written about an expanded conception of workers’ compensation causation here (forthcoming in 2022 in the San Diego Law Review). 

My colleague Judge David Torrey wrote on this blog back on November 14 about the impending 50th Anniversary of the National Commission on Workmen’s Compensation that issued a report in 1972 after receiving an investigative mandate in the OSH Act of 1970. I will have a great deal to say about that report soon. Its genesis, in a nutshell, was undercompensation, and I’ll be writing in subsequent posts and articles about how the Federal government and the Council of State Governments understood, as early as 1955, and as reflected in several intragovernmental reports I’ll be analyzing, that undercompensation both shifts the costs of injury in unpredictable ways and provokes structural introspection and arguments for reform or more than reform. 

It comes down to this. When confronted by the reality of injury, illness, and death emerging from foreseeable, predictable economic activity (I’m thinking specifically of “work,” but I suppose we could become more cosmic), any legal system has only a few ways it may proceed. It might compensate through something like a tort system, when obviously wrongful conduct has been perpetrated by an identifiable wrongful actor, with the bad actor entirely footing the bill for the costs of injury. That kind of tort system, for a whole variety of reasons, will lead to uneven coverage: a few big injured “winners,” and many more injured losers. But if the “wins” are big enough it might make the world safer in the long run.  

Alternatively, a legal system might opt to compensate anyone who is the victim of socially useful working activity; both because it is cheaper than trying to find out who was “wrong,” and because it seems unjust for those who profit from the working activity of human beings not to contribute to the costs arising inevitability (or so we are told) from those workers being hurt or killed. This system breaks down at times because those who pay the costs of injury (employers and their carriers) predictably control the costs of payout by very tightly defining eligibility—sometimes to the point where a disinterested observer might be led to wonder if we are looking at the same system. Of course, the workers’ compensation system began as an anti-destitution rather than a make-whole structure. (The earliest systems provided 50% of the average weekly wage as a benefit with no provision for ongoing medical benefits).  

We have been papering over the undercoverage of state compensation systems (whether tort or workers’ compensation) by implementing “Ken Feinberg” systems whenever duty, breach, or causation problems become difficult. That is certainly another approach a legal system might logically take: if it won’t fit in the torts or workers’ compensation bucket, get another bucket. The problem is that the interplay between these three buckets will become extremely complex over time and raise the question of whether we should not have a different, bigger bucket.  

And, of course, a legal system might decide that it prefers not to compensate victims at all for reasons of “efficiency.” When that de facto insulation of employers (or others) from liability extends to harm wrongfully caused, however, we run into questions of constitutional limits. As I am developing in a paper that  I have been writing over the last six months or so, I believe there is a constitutional right to personal security (one of William Blackstone’s absolute rights - see *129-134 here). A government that will not protect me from the wrongful conduct of others by affording an adequate remedy for injury encroaches on my personal security. 

In the end I wonder if events like the terrible tornados in Edwardsville will propel us to a Triangle Shirt Waste Fire state of mind to redouble efforts to adequately compensate the victims of work injury and death (and their families). 

Michael C. Duff