Workers’ Compensation History: The Great Tradeoff!

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by Christopher J. Boggs, CPCU, ARM, ALCM

Eighteenth century pirates and a nineteenth century German “Iron” Chancellor preceded the United States in the creation of a social system for the protection of injured workers. The modern workers’ compensation system owes parts of its existence to this unique parentage.

Arrrrg, I’m Hurt!

Pirates, contrary to popular myth, proved to be highly organized and entrepreneurial. Prior to their assignment to the ranks of outlaws, they were considered highly-prized allies of the government; plundering and sharing the spoils with governors of the pre-Revolutionary colonies giving them a safe port.

Privateering (the gentleman’s term for piracy) was a dangerous occupation; taking booty away from those who did not want to give it up leads to sea battles, hand-to-hand combat and injury. Because of the ever-present chance of impairment a system was developed to compensate injured “employees.” There was one catch: he or she (there were female pirates as well) had to survive the wounds to collect as there was no recorded compensation for death.

Piratesinfo.com provides some information regarding the amount of payment made to the injured:
• Loss of an eye – 100 pieces of eight (Spanish dollar);
• Loss of a finger – 100 pieces of eight;
• Loss of left arm – 500 pieces of eight;
• Loss of right arm – 600 pieces of eight;
• Loss of left leg – 400 pieces of eight; and
• Loss of right leg – 500 pieces of eight.

Average weekly wage for colonial Americans of this period equated to approximately two pieces of eight per week. Loss of an eye or finger would merit payment approximating 50 weeks of wages. The right arm was worth 300 weeks (a little less than six years). These compare rather closely to modern compensation schedules.

In addition to being compensated, injured crew members were allowed to remain on board and offered less strenuous duty. The first return-to-work program was created.

Marxism, Socialism and Workers Compensation

Otto von Bismarck, the “Iron Chancellor” introduced “Workers’ Accident Insurance” in 1881. Phased in between 1881 and 1884, the program became the model for workers’ compensation programs in Europe and ultimately America.

Bismarck was not known as a socially-conscious ruler; the working conditions of the common man were not necessarily foremost in his mind. History teaches that the unification and growth of Germany (Prussia) and the protection of his position were his main concerns. But Bismarck’s main political rivals were Marxist with socialist agendas – a feigned concern for the plight of the common man. On the top of this agenda was the creation of a social program for the protection of workers injured on the job, a workers’ compensation program.

The “Iron Chancellor” eventually outlawed Marxist and other socialist-leaning parties, securing his rule. However, he did borrow some of their ideas to keep peace among the people. Workers’ Accident Insurance became the first compulsory workers compensation program enacted in a modern, industrialized Europe.

England followed Germany’s lead replacing the outdated Employer’s Liability Act of 1880 with its own Workmen’s Compensation Act in 1897. The employer’s liability act was relatively expensive protection that depended on the court system. This is the same type of program common in America during the late nineteenth century and early twentieth century.

America and Workers’ Compensation

America did not enjoin the workers’ compensation social revolution until the 1900’s. Maryland (1902), Massachusetts (1908), Montana (1909) and New York (1910) each introduced workers compensation statutes. All four laws were struck down under constitutional challenge as violating “due process.”

New York’s 1910 act faced fierce opposition from labor unions. Union officials feared that state control of worker benefits would reduce the need for and popularity of the union. With socialized care and compensation, the necessity of the union was compromised and long-term loyalty to the union was in question.

On March 24, 1911, the New York Court of Appeals declared the State’s compulsory workers compensation law unconstitutional. One hundred forty-six (146) workers were killed the next day in a fire at the Triangle Waist Company in New York City. Not all were killed in the fire, most died attempting to escape the flames, jumping from nine and 10 stories up to the street below.

With no workers compensation system, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the dead. The owners were tried for manslaughter and acquitted. A civil suit against the owners netted each of 23 families $75 in damages (The Columbia Electronic Encyclopedia). New York finally adopted a workers’ compensation law in 1913 that would withstand constitutional challenges.

Employer Negligence

Prior to the enactment of workers’ compensation laws, the only source of compensation for any injured employee was through the courts. Employees had to prove the employer was negligent to gain any compensation for lost wages or medical bills. Employers utilized several defenses against charges of negligence:
Assumption of Risk: Proving negligence requires evidence that a duty of care is owed. When an employee assumes the risk of an inherently dangerous or recognizably potentially dangerous activity, the duty of care is lifted off the employer. With no required duty of care, there can be no negligence. Employees in hazardous occupations were believed to understand the hazards and assumed the risk of injury;
Contributory Negligence: Doctrine of defense stating that if the injured person was even partially culpable in causing or aggravating his own injury he is barred from any recovery from the other party. This is an absolute defense; and
Fellow Servant Rule: Defense against employer negligence asserting that an employee’s injury was caused by a fellow employee not by the acts of the employer. If proven, negligence was not asserted against the employer and recovery could be severely limited or barred.

Very few workers had the means to bring suit. Those that could afford a lawsuit had to overcome the defenses available to the employer. The result: very few employers were held responsible for injury and required to pay. Awards for successful suits were unpredictable, ranging from too little to merit the trouble to more than the employer planned.

Congress enacted two laws to limit the harshness of these defenses. The Employers’ Liability Acts of 1906 and 1908 were Federal attempts to soften the contributory negligence doctrine. These legislative attempts did little to protect injured workers from the ravages of defense attorneys and juries.

The Great Tradeoff!

Human capital (the value of the employee) became a driving force behind the push for a system of protection. Stories (although no evidence currently exists) of injured mine workers being laid at the door of their house with no compensation or admission of negligence from the mine owners, leaving the families to struggle for a means of support and help made their way through industrialized cities and states leading to demands for a better system. Recognition of the value of employees and other events between 1900 and 1911 helped spurred the movement towards a social system of workers’ compensation:
1908 – President Taft signed the first viable workers’ compensation statute into law with the creation of the Federal Employers Liability Act designed to protect railroad workers involved in interstate commerce (the program is still in existence today);
1908-1909 – Various states set up commissions to study the merits and drawbacks of a social system of injured employee compensation. Overwhelmingly these commissions reported that business, industry and employees supported such a system (the basis of study was the German law);
1910 – Crystal Eastman compiled and penned “Work Accidents and the Law.” This document presented the problems inherent in the then-current system of negligence-based compensation in light of the cost to human capital. It also highlighted the benefits of a workers’ compensation program as preventative in nature (employer’s would be more willing to invest in safety if the cost of injury was ultimately on them). This work is credited with changing business’ and labor groups’ attitudes towards workers’ compensation and employee safety;
1911 – Triangle Waste Company fire (detailed above); and
1911 – “The Great Tradeoff” debate. Before any plan could move forward, an agreement between labor and industry had to be reached; both had to be willing to give up something for a workers’ compensation system to function properly. The employer agreed to pay medical bills and lost wages, regardless of fault; and the employee agreed to give up the right to sue.

Wisconsin passed its workers’ compensation law in May 1911 becoming the first state to effectuate an on-going workers’ compensation program that survived legal challenges. Nine more states adopted workers’ compensation laws before the close of 1911. By the end of 1920, 42 states plus Alaska and Hawaii (even though statehood didn’t come for either until 1959) enacted workers’ compensation statutes. Mississippi was the last state to implement a workers’ compensation statute, waiting until 1948.

Voluntary vs. Compulsory

Early programs (1911-1916) were voluntary participation laws. Employers were not compelled by the various statutes to purchase workers’ compensation. Compulsory participation laws doomed earlier programs, being struck down as unconstitutional. The Fourteenth Amendment required due process before a person or entity could be compelled to part with property.

In 1917, the Supreme Court upheld the constitutionality of compulsory insurance requirements, opening up the doors for every state to require the purchase of workers’ compensation coverage. Then, as now, each state instituted different threshold requirements.

Conclusion

Workers’ compensation laws have evolved and expanded since the beginning, but these are the roots of the modern American workers’ compensation system.

This history begins a workers’ compensation series that will cover various topics and concepts surrounding the modern workers compensation system.



All terms in this glossary and the glossary itself is taken from the book “The Insurance Professional’s Practical Guide to Workers’ Compensation: From History through Audit.” The book is available now to add to your insurance library.


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Comments

  • July 14, 2008 at 12:56 pm
    Bruce Ebert says:

    Chris: Great history lesson, entertaining and educational. Well worth a sackful of pieces of 8.

    Thanks,

    Bruce

  • July 14, 2008 at 3:46 pm
    Dread says:

    WC costs society more than it’s worth. The vast majority of those who use the system are employed in some physically strenuous, or inherently dangerous line of work. It’s less a question of “if” you’ll get injured as it is “when” you’ll get injured. Since the benefits aren’t taxable, many claimants make more money by being on WC. Here in NYC, the old people keep doing their strenuous work waiting for the “pension claim”, one that will be certified for lifetime benefits. The courts have made it virtually impossible to get a judgement against a recalcitrant employee, so even when someone is injured through their own stupidity or carelessness, they get paid.

  • July 14, 2008 at 4:00 pm
    InsIsMyPassion says:

    Interesting rant, Dread. Not exactly sure what is has to do with the article, but intriguing none the less.

    The whole purpose of WC is to be a no-fault system without need to prove or need to defend – regardless of stupidity. If there were ever a stupidity exclusion in any policy, very few claims would ever be paid.

    I’m sure employers would like to see compulsory WC go away since to them it is nothing but an expense; but the result of that would be disastrous. Adverse selection would make costs skyrocket; a reversion to the negligence system would cost employers whose employees are injured far more than WC premiums (juries and finding of fault has changed a great deal over the last century). Etc., etc.

    It might be broken, but it’s the best we got right now. We certainly don’t want the Feds involved.

  • July 15, 2008 at 1:46 pm
    ad says:

    Very interesting article.

    Today, the lawyers would love to rid us of Workers Compensation. Can you imagine how much more money they and their clients could make with pain and mental anguish & punitive damages? I would guess most, if not all states, have limitations on what the lawyers can get from WC settlements.

  • July 29, 2008 at 10:59 am
    speller says:

    interesting article, but I think it needs spell checking. Its not “privatering”, its “privateering”.

  • July 29, 2008 at 11:44 am
    dot_hemath says:

    …and it was the Triangle Shirtwaist Factory not the Triangle Waste Factory (though the latter sounds like a much more hazardous risk).

  • July 29, 2008 at 11:48 am
    InsIsMyPassion says:

    Dot,

    Actually, it is Traingle Waste. Traingle Waste was the parent corporation name, the location was Triangle Shirtwaste. So, you’re kind of right.

  • July 29, 2008 at 11:49 am
    Got An "E" says:

    You really gonna knock a whole article over an “e”? Certainly you got better things to do.

  • July 29, 2008 at 12:37 pm
    inmyplace says:

    Nice article. As far as stupidity being compensable, it is.. enjoy the job security that comes as a result of it!

  • July 29, 2008 at 2:01 pm
    speller says:

    Sure I do, I just like accuracy. As far as I know, there is no such thing as privatering. If you’re going to write an article about pirates and their origins, you should at least get it accurate.

    And, as far as having better things to do than worry about an E. Right back to you, since you have time to comment on my comment. (LOL)

  • July 29, 2008 at 2:11 pm
    Got An "E" says:

    Actually, Speller, I don’t have too much other stuff to do than mess with you.

    Since when is mis-spelling akin to inaccurate information? Just a question, since I ain’t got nuthin better to do.

  • July 29, 2008 at 2:57 pm
    William Rabel says:

    This is the best short history of Worker Comp I have ever seen. WC was enacted for real reasons and there was an important trade off, as the article states. It is important that we not forget the reasons WC was enacted as we evaluate options for the future.

  • July 29, 2008 at 2:57 pm
    speller 2 says:

    What’s wrong with pointing out spelling errors.

  • July 29, 2008 at 3:16 pm
    Got An "E" says:

    Never said it was “wrong,” just seems a bit picky to miss the point and good information over one “e.”

  • July 29, 2008 at 3:34 pm
    insurance major says:

    This is a NICE article.

  • July 30, 2008 at 9:39 am
    dot_hemath says:

    InsIsMyPassion, I beg to differ. The parentage issue that you point out may be correct, but it is still “Waist”, not “Waste”. OK?

  • August 4, 2008 at 11:58 am
    NYagent says:

    Answering the comment by “ad,” in NY lawyers have successfully broken through WC in the contracting class. They can jump over WC to sue a GC on behalf of a subcontractor’s employee (“NY Labor Law”). The GCs are being worked over with having to pay WC premiums and now higher GL premiums to cover the increased liability suits.

  • August 11, 2008 at 2:26 am
    Dan says:

    In the early 1900’s my great grandfather was badly hurt in a mine blast. He was given $20.00 and told to come back if he got better. My Grandfather had to drop out of school at the age of 14 to take care of the family. For the time, $20.00 was great but it didn’t help much for the five years he couldn’t work and the low wage job he could eventually get.

  • September 11, 2012 at 11:52 am
    nvkkthibc says:
  • February 6, 2013 at 1:50 am
    Mike Tarbet says:

    Your history of worker’s compensation says, “Wisconsin passed its workers’ compensation law in May 1911 becoming the first state to effectuate an on-going workers’ compensation program that survived legal challenges.”

    How can Wisconsin have been first when Washington State signed theirs into law on March 14th, 1911, and it was ruled constitutional by the Washington State supreme court on September 27th, 1911, while Wisconsin’s law wasn’t ruled constitutional by the Wisconsin supreme court until November 14th, 1911?

    Did May and November come before March and September in 1911?

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