Posts Tagged ‘exclusive remedy’

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Exclusive Remedy wins: Safe in Florida … for now. Also upheld in DBA suit

Thursday, June 25th, 2015

The big workers comp news of the week: A three-judge panel of the 3rd District Court of Appeal overturned a ruling that challenged the concept exclusive remedy: Appeals court tosses out key workers-comp ruling. Refresher: In the 2014 Florida case often referred to as the Padgett ruling, Miami-Dade Circuit Judge Jorge Cueto ruled ruled workers compensation unconstitutional, commenting that state legislative reforms had weakened the law to a point where the remedy for employees was no longer sufficient to warrant the loss of their right to sue employers.

But before exclusive remedy proponents break out the champagne to celebrate the victory, in Padgett Out, Now What? Dave DePaolo dissects the ruling, explaining why any celebrations may be premature.

“But the 3rd DCA set aside Judge Cueto’s ruling on procedural grounds, not addressing any of the merits. This leaves the question open.

The organizations pushing the constitutional challenge have vowed to continue the fight.

And those defending the system realize that the attacks will continue, particularly since there are still two cases pending in the Florida Supreme Court attacking smaller provisions of the law on similar grounds (Westphal v. City of St. Petersburg is about the statutory limits on the payment of temporary total disability benefits, and Castellanos v. Next Door Co. involves a challenge to the cap on claimant attorney fees).”

For the legal nerds in the crowd, a must-see analysis on the case can be found at Judge David Langham’s post It is Padgett Time, Third DCA Reverses. As Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings, Langham wields some expertise on the matter — his post is worth reading.

Exclusive remedy upheld in Defense Base Act ruling

In other recent exclusive remedy legal news, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reaffirmed that the Defense Base Act (DBA) is the exclusive remedy for contract workers. See: The D.C. Circuit’s Message to Injured Government Contractor Employees: ‘There’s an Exclusive Remedy For That’ in National Law Review.

“Despite the Act’s broad exclusivity provision, in Brink v. Continental Insur. Co., an estimated class of 10,000 contractor employees who were injured in Iraq and Afghanistan brought a purported class-action lawsuit for $2 billion against dozens of government contractors, alleging that the contractors conspired with their respective insurance carriers to deny the workers DBA benefits. But a three-judge panel of the D.C. Circuit unanimously rejected plaintiffs-appellants’ claims and, in a 17-page opinion, made five key findings that will help government contractors defend similar lawsuits in the future.”

Related

3rd DCA Reverses Summary Judgment in FWA Constitutional Challenge to Exclusive Remedy

Brink v. Continental Insurance Company, Court of Appeals

Appeals Court Tosses Out Key Workers Comp Ruling

D.C. Circuit tosses suit brought by injured military contractors

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Posted in Compensability, Law | 1 Comment »

News roundup: Risk Roundup, Wal-Mart Class Action, WCRI Report, Massey Probe Widens & more

Wednesday, November 28th, 2012

Risk Roundup – Emily Holbrook hosts Cavalcade of Risk #171 at Risk Management Monitor – be sure to check it out.
One to watch: Wal-Mart Class action & WC – In Business Insurance, Roberto Ceniceros writes about a Wal-Mart class action settlement that raises big workers comp questions. Josephine Gianzero et al. v. Wal-Mart Stores Inc. resulted in a settlement for 13,521 plaintiffs. It raises several issues of concern related to workers comp: the case was a breach of the exclusive remedy provision – an issue that is always of some concern to employers – and it raises questions about medical claims management.
According to Ceniceros: “The settlement involving Wal-Mart’s claims administration unit and Concentra Health Services Inc. in Colorado also is troubling since it is believed to be the first payout resulting from recent suits alleging that employers’ and workers comp service providers’ claims management practices violated the Racketeer Influenced and Corrupt Organizations Act, several observers say.”
This is quite the hot potato and of concern to TPAs, several of whom declined comment on the case. As Ceniceros reports, “The issue is sensitive because the lawsuit raises the question of how far claims administrators can pursue management of questionable medical treatments found through common practices, such as utilization reviews, without violating the law, the source said.”
(Here’s a summary of the case when the class action was certified in 2010.
How to keep injured workers from turning to lawyers – In the current issue of CFO, Richard Victor writes about a recent Workers Compensation Research Institute (WCRI) study that sheds light on why injured workers feel the need to hire an attorney: How to Keep Unneeded Lawyers Out of Workers’ Comp . It’s a good article and worth the read – here’s a snippet:

“Not surprisingly, the study found that workers are more likely to seek attorneys when they feel threatened. Sources of perceived threats can take different forms. The character of the employment relationship, for example, was a factor for the 23% who strongly agreed that they hired attorneys because they feared being fired or laid off. Fifteen percent also strongly agreed that they needed attorneys because their employer could perceive their claims as illegitimate.

Miscommunication in the claims process was another significant factor. In fact, 46% said they hired attorneys because they felt the claim had been denied when, in fact, it had not yet been accepted into the process. Attorney involvement among workers with the most severe injuries were 15 percentage points higher than those with mostly minor injuries.”

Related: We refer you to one of our favorite articles on the topic by plaintiff attorney Alan S. Pierce: Top Ten List as to Why Injured Workers Retain Attorneys
More Charges; Big Branch Probe Widens – Ken Ward reports that today, federal prosecutors have charged a longtime Massey Energy mine manager with being part of a decade-long conspiracy to defy safety laws and dupe government inspectors. Expect more to come:

But in new court documents, Goodwin and Assistant U.S. Attorney Steve Ruby allege a broader conspiracy by as-yet unnamed “directors, officers, and agents” of Massey operating companies to put coal production ahead of worker safety and health at “other coal mines owned by Massey.”

It is the first time in their probe of the Upper Big Branch Mine Disaster that prosecutors have filed charges alleging Massey officials engaged in a scheme that went beyond the Raleigh County mine where 29 workers died in an April 2010 explosion.

Follow the ongoing story and find links to other coverage at Ward’s Coal Tattoo blog.
Pharma Costs – Joe Paduda links to and comments on a recent Express Scripts drug trends report. The long and short of it? Pharmacy price increases are driven by brands.
Fighting Fraud – Southern California has 65 billboards warning about work comp fraud. To raise public awareness or criminal penalties associated with fraud, the boards will be placed on billboards and transit shelter posters placed across San Diego County.
Strange Risks – Can you insure against acne attacks or hair loss? Lori Widmer has an entertaining read in this month’s Risk Management Magazine: The Stranger Side of Risk.
Other noteworthy items

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GCs in MA: Comp’s Not-So-Exclusive Remedy

Wednesday, May 25th, 2011

Henry C. Becker Custom Building Limited was doing some construction work in Newburyport MA. They hired the Great Green Barrier Company to do some waterproofing. They apparently did not ask for a certificate of insurance; Great Green Barrier did not carry workers comp for their employees. There was an explosion on the jobsite. Timothy Wentworth, an employee of Great Green Barrier, was killed; his son, Ezekiel, was severely injured. As the employees of an uninsured subcontractor, the Wentworths collected workers comp through Becker’s insurance company, which paid out substantial lump sum settlements to each.
Then the Wentworths sued Becker as a third party. Becker objected: comp, after all, is an exclusive remedy. Once the Wentworths collected comp benefits, they should be precluded from any other remedies. Becker sought and won a summary judgment dismissing the lawsuit.
The case wended its way to the MA Supreme Judicial Court, where the justices determined that the summary judgment was improper: the exclusive remedy provision of the comp statute applies only to employees. The Wentworths were not employees of Becker, but of Great Green Barrier. Becker, in other words, was a third party and thus, despite the payment of comp benefits, was not immune from lawsuit.
Compounded Liabilties
Becker is going to pay and pay again: first, under their workers comp policy, the payroll for Great Green Barrier employees will have been added to the Becker payroll in the premium audit; that’s the chump change. Then, the substantial losses for the Wentworths – each likely exceeding the state rating point limit of $175,000 – will be added to the experience modification calculation for Becker over a three year period. That’s serious bucks (but nowhere near the financial hit taken by Becker’s comp carrier).
Then, given this ruling, the Becker company is vulnerable to a lawsuit, which is likely to result in additional payments to the Wentworth family. The MA Supreme Court has made it crystal clear: general contractors are liable for the comp costs of uninsured subs, but the acceptance of comp benefits does not preclude a third party lawsuit.
The lesson for GCs should be clear: proper risk transfer must be a fundamental part of the operation. Make sure subcontractors carry workers comp: require that any and all subs produce a certificate of insurance, with the GC named as an additional insured. Track the expiration dates on the certificates and do not allow subs on the job site unless they have shown that comp (and liability) policies are in place.
Henry C. Becker Custom Building has learned about risk transfer the hard way, an expensive lesson indeed. May a word to the wise be sufficient.

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“Exclusive Remedy” for Losing Your Face?

Tuesday, December 8th, 2009

Usually employers try to prove that someone is not an employee, in order to avoid the workers comp liability. (Think “independent contractor.”) Today we examine a truly horrific case where the employer is desperate to establish compensability under workers comp, so that a grieviously injured employee can only collect comp benefits. By using the “exclusive remedy” provision of comp, the employer wants to avoid liability for pain and suffering. Some pain, some suffering!
Sandra Herold runs a towing company out of her house in Stamford, Connecticut. The company had a mascot – a 200 pound chimpanzee named Travis, who lived with Herold. I do mean lived with her: according to reports, they shared wine at candle lit dinners and shared a bed as well (no further comment possible).
Charla Nash occasionally worked for Herold, in an unspecified capacity. In February 2009, Herold called Nash and asked her to come by, as she was having trouble controlling Travis. As soon as Nash arrived, Travis attacked her, ripping off her face (literally). She lost her eyes, nose and mouth in the horrendous attack. (While images of her ravaged face are available on the internet, I do not recommend viewing them.) Police eventually were able to shoot the chimp.
Nash somehow survived the attack and is suing Herold for $50 million; a second suit against the state of Connecticut seeks an even larger amount, alleging negligence in allowing Herold to keep the animal in her home. (It is worth noting that no criminal charges have been brought against Herold.)
Exclusive Remedy?
Herold’s first line of defense is establishing workers comp as the “exclusive remedy.” She claims that Nash is an employee and thus is prohibited from suing her “employer.” While it may be premature to judge this particular strategy, it seems highly unlikely that Herold will prevail. Even if she can show that Nash was on the payroll, it is clear that Nash was not working on the day of the attack; Herold had called her and asked her to come over to help with Travis. And even if it can be proven that Nash occasionally helped out with Travis, it is unlikely that her job description included the duties of an animal trainer (for which she is not qualified).
In the unlikely scenario that this case is limited to workers comp, the claim will run in the multiple millions: comp will have to pay for Nash’s humongous medical bills – including a face transplant – and support her astronomical living expenses. This is a permanent total injury, so the indemnity portion may also be substantial. (If I were Herold’s comp carrier, I would aggressively deny this claim as not being work related.)
Herold is banking on a judicial process that finds having your face ripped off by a 200 pound beast is simply part of the job, part of the “assumption of risk” we all accept simply by showing up for work. (If that were the case, how many of us would be willing to report to work?) Herold’s house-of-cards defense will collapse with the most humble of gestures: Nash revealing her destroyed face to a jury.
Exclusive remedy is an important concept, one well worth preserving, but in this situation, it has no place. Herold must be held accountable for the actions of her late companion, Travis – anything less would be a travesty.

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Cavalcade of Risk, Linkedin, AIG, fraud, Station Nightclub fire, & strip searches

Wednesday, December 2nd, 2009

Nancy Germond is hosting Cavalcade of Risk #93 – check it out. And while you’re at it, check out Nancy’s regular insurance column on AllBusiness.
Mark Wall’s excellent WC forum on LinkedIn – While recently attending the National Workers Compensation & Disability Conference in Chicago, I had the opportunity to meet Mark Walls who is the founder of LinkedIn’s excellent Workers’ Compensation Forum. Mark, who is a genuinely nice person as well as a commensurate professional, has created an impressive network of more than 2,400 members, which includes employers, claims adjusters, insurance carriers, third party administrators (TPAs), brokers, attorneys, risk managers, regulators, EH&S professionals, and vendors that provide service to the workers’ comp industry. The group illustrates some of the best advantages and features of social media: industry networking, active discussion boards, and news feeds to blogs and alternative media sources. Members can pose questions or topics and get feedback from other members. Plus, Mark does a great job of ensuring that posts are on-topic and he is strict about disallowing spam. To join, you need to first be a member of LinkedIn, and then you can register to join the Workers’ Compensation Forum. Hope to see you there!
The soft market and AIG – if you are wondering why the soft workers comp market persists, read Joe Paduda’s post on the implications of AIG’s price cutting – it certainly offers some clues. Of course, AIG’s pricing isn’t the only factor, but when you have an elephant in the room, it certainly can’t be ignored.
Fraud surveillance – Roberto Ceniceros talks about cuts in fraud surveillance in both the public and the private sector. He’s looking for feedback from others who are experiencing a similar trend. We’ve also heard talk about cuts in safety and loss control services offered by insurers as part of work comp policies. Any feedback on these issues? It would seem shortsighted to relax on either of these important services.
RI nightclub fire settlements – Insurance Journal covers a recent report on settlement details in the 2003 Rhode Island nightclub fire that killed 100 people and injured 200 others. More than 300 survivors and victims’ relatives sued after the fire. You can also follow some of our past coverage related to workers’ comp, or the lack of it, in this sad case: Workers’ Comp and the Station Nightclub; Avoid Comp Premiums and Pay the Price; Station Nightclub: Who Pays?; Stone Walls and Steel Bars for Business Decisions
Strip search not covered by comp – For nearly a decade, fast food chains throughout the nation were plagued by a cruel and bizarre telephonic hoax, the so-called strip search hoax. The “pranksters” who posed as detectives called fast food restaurants and retail chains and somehow convinced store managers to detain hapless employees. The managers were then guided through a series of progressively questionable and invasive actions such as strip searches of the alleged criminal employees, supposedly on behalf of the police. Sounds weird? It certainly was. In recent developments, Louise Ogborn, a McDonald’s employee and the victim in one of these cases, was awarded $6 million in damages for her humiliating ordeal. McDonald’s attorneys appealed the ruling, invoking the exclusive remedy of workers’ compensation. The Kentucky Court of Appeals disagreed, stating that “We do not find manifest injustice in the trial court’s ruling that Ogborn was not acting in the course and scope of her employment while she was held in the manager’s office.”

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Health Wonk Review; also, the crazed chimp case and workers comp

Thursday, October 15th, 2009

It’s Health Wonk Review week, and the happenings are at Hank Stern’s place this week. Please visit InsureBlog for the Lean, Mean, and Clean edition of Health Wonk Review.
Was chimp mauling work-related?
In other news this week, who can forget last February’s horrific mauling by Travis the chimpanzee that left Charla Nash disfigured and blind? Charla’s extensive injuries are still being treated at the Cleveland Clinic, which specializes in reconstructive surgery and is noted for being the hospital that performed the nation’s first face transplant. Her sister keeps an online diary of her progress at Friends of Charlie Nash. Charla’s family has filed a $50 million lawsuit against the primate’s owner for ” …negligence and recklessness for owning “a wild animal with violent propensities, even though she lacked sufficient skill, strength and/or experience to subdue the chimpanzee when necessary.”
Yesterday, we learned that the attorney for Sandra Herold, the chimp’s owner, asserts that the injuries sustained were work-related and should be treated as a workers compensation claim:

“But Herold’s attorney, Robert Golger, says in recent court papers that Nash was working as an employee of Herold’s tow truck company, Desire Me Motors, at the time of the attack. He argues that Travis was an integral part of the business, saying his picture was on the wrecker, he appeared at the garage daily and he attended numerous promotional events.
The house where the attack occurred is a business office of the company, Golger said. Nash fed Travis, cleaned his play area and purchased his supplies as an employee, Golger contends.”

If the link to work is successfully established, it is possible workers comp could be determined to be Charla’s exclusive remedy. This may force the family’s hand because, according to Connecticut law, a workers compensation claim must be filed within one year of the date of injury.
Workers comp is a no-fault system. While there have been questions raised about whether Herold was negligent in keeping such a dangerous wild animal, employer negligence would not pierce the exclusive remedy shield – just as negligence on the part of an employee would not disqualify an employee from benefits. In most states, an employer’s conduct would have to rise to a standard of deliberate intent to injure an employee to pierce exclusivity.
Workers comp covers wage replacement and medical care, but it differs from civil remedies in that there is no compensation for pain and suffering. In the case of severe and egregious injuries, this can seem unfair, but it is part and parcel of the workers compensation pact – if injured on the job, the employee forgoes the right to sue the employer in exchange for a guarantee that the employer will provide medical care and wage replacement in accordance with a state’s statutory benefits. We’ll have to watch how this plays out in terms of establishing the work connection.

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Dying to Find Fault in Wyoming

Monday, August 24th, 2009

Wyoming might be a good place to work, but it’s also a good place to die at work. The mortality rate for occupational injuries is three times the national average, with 15.6 fatalities per 100,000 workers. Many of these fatalities occur in the oil fields, where “roughnecks” make pretty good wages in exchange for working in relatively dangerous conditions. As DeeDee Correll writes in the Los Angeles Times, everyone shares the goal of improving safety on the far-flung job sites, but there is a continental divide in how to achieve that goal.
Most oil workers are employed by independent contractors, who provide the bodies for the intense work in the fields. The fields are owned by big corporations. On one side of the fence you find workers and their advocates, who want to be able to hold the big corporations liable for what happens on the job. They want to be able to sue the big corporations when they suffer catastrophic injuries or deaths on the job.
The counter argument says that workers comp – carried by the employers of these field workers – should be the exclusive remedy for work-related injuries.
At issue here is the question of accountability and control: under current Wyoming case law, injured workers have to prove that the operator maintained “pervasive” control over the site. This is a very high standard, because the daily operations at these sites are primarily under the control of the independent contractors. By lowering the standard of control, worker advocates would make it easier for workers to sue the oil companies for damages.
Denim Versus Suits
The battleground for this dispute is the Wyoming legislature. As is so often the case, there is considerable theatricality on display. Many of the roughnecks lobbying for a change in the law show the scars of their chosen occupation. They are dressed in denim and baseball caps. Their opposition, lawyers for the oil companies, wear the indispensable dark suits.
The “suits” counter the compelling visual evidence of the roughnecks with some dubious arguments, maintaining, for example, that any change in the law would expose home owners to liability for injuries to contractors working on their houses. That’s a red herring, as homeowners rarely exercise significant control over the work environment of their contractors.
There should be enough middle ground in this dispute to fashion a meaningful compromise. Wide-open litigation is rarely the best way to go. The legislature should set specific standards for safe operating procedures in the oil fields. Oil companies should be held accountable for meeting these standards. Only if they are demonstrably negligent in maintaining and documenting these standards should the door be opened to law suits. At the same time, the state should bolster the benefits available to workers who are killed or severely injured on the job.
The “exclusive remedy” provision of workers comp is a standard well worth preserving. It’s tempting to carve out exceptions, but each exception becomes a fault line in the fundamental compromise that is workers comp. We are nearing the 100th anniversary of comp in America (New York 1911). For the most part, it is a remarkably successful experiment in public policy. The law makers of Wyoming would do well to keep this success in mind: by all means tinker with the statute to make it more responsive to 21st century working conditions, but don’t mess with the premise. This is not the time to find fault with “no fault.”

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News Roundup: trouble in FL; medical apartheid; exclusive remedy in NJ; regulators caving, and more

Monday, April 14th, 2008

Trouble brewing in Florida – Joe Paduda of Managed Care Matters is looking at a proposed regulation in Florida for hospital reimbursement and he is not liking what he sees. He says its a situation that is likely to “scare the pants off you.”
Medical apartheid – Richard Eskow of Sentinel Effect posts about recent studies by the Robert Wood Johnson Foundation and the Harvard School of Public Health, which show extreme disparities in medical care for whites and black. Of the studies, the South Florida Times states: “… elderly black and Hispanic patients often received substandard care for common but serious conditions like heart attacks, congestive heart failure and pneumonia. Researchers say their data suggests that the nation’s healthcare system is racially and ethnically segregated, not just for the elderly, but across the board.”
Troubling questions about regulators and public health interests – are regulators who are charged with protecting the health and safety of American workers and the general public succumbing to political and corporate pressure? Liz Borkowski of The Pump Handle blogs about a CBS investigation into why why the Centers for Disease Control slashed its Beryllium Study. In raising the question of whether officials ceded to political and corporate pressure in downscaling a health study of residents living near Brush Wellman’s largest beryllium-manufacturing plant, CBS questions whether the CDC “put politics before public health concerns.”
Recent reporting in the Las Vegas Sun investigates OSHA’s practice of reversing its findings and cutting fines for employers involved in construction fatalities. Reporters found nine instances where penalties for safety violations related to these fatalities had been scaled back after OSHA officials met privately with contractors. This reporting is the second part of a two-part series on construction deaths in Nevada. The first segment entitled Pace is the New Peril looks at a recent building boom that has claimed the lives of nine workers in sixteen months.
Exclusive remedy prevails in NJ – a suit for damages against a NJ employer was dismissed by the state’s superior court in the case of a driver who was struck by a vehicle while unloading supplies from his truck. The employee had sued claiming gross negligence on the part of his employer as well as the company where the delivery occurred, stating that he had not been provided cones or flares and had alerted his employer about the safety problems that existed at this particular delivery spot. In so deciding, judges said there was not enough evidence in the case to show the companies “deliberately intended to harm (Dadura) or knew that the consequences of its inaction were substantially certain to result in harm.” In most states, there is a very high bar for piercing exclusive remedy – employer negligence would have to reach a level of being intentional or certain.
Combustible Dust bill – Last week, a House Education and Labor Committee passed a bill that would require OSHA to issue an interim final standard regulating combustible industrial dust within 90 days and a finalized standard within 18 months. This progress represents only one hurdle however – the bill still must gain House and Senate approval in the face of significant opposition.
Soldiers suffering high rate of mental health problems – The New York Times reports that army leaders are concerned about the mental health of soldiers who face multiple deployments to Iraq. More than 197,000 have deployed more than once, and more than 53,000 have deployed three or more times. According to an Army survey of combat troops sent to Iraq for the third or fourth time, more than one in four show signs of anxiety, depression or acute stress. This means that American employers should expect a high rate of PTSD for citizen soldier veterans when they return to the workplace.

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Docs and Jocks: Exclusive Remedy for a Pro Football Player

Wednesday, April 13th, 2005

I set out this morning to blog the general status of “exclusive remedy” in the workers comp system, but I’ve been distracted by a specific case which involves an injury to a professional athlete. I will return to the more general ramifications of “exclusive remedy” in a few days.
Greg Lotysz was a lineman for the New York Jets. In July of 2000 he sustained an injury to the anterior ligament of his left knee while blocking another player during pre-season practice . Pursuant to his NFL Player contract and the players’s Collective Bargaining Agreement, he received care from the Jets’ Medical Department. Lotysz underwent surgery and post-surgery rehabilitation under the care of the Jets’ physicians. A post-surgical infection resulted in permanent damage to his knee, which in turn brought a premature end to his football career.
No Malpractice Here
Lotysz tried to sue the team doctors for $10 million in damages, but in December of 2002 an appeals court in New York ruled against him. The court found that the doctors were employees of the Jets, that their medical services were made available to plaintiff as a consequence of his employment and that their services were not available to members of the general public. In other words, the court viewed the team doctors as co-workers of the same employer, so tort liability was not available as a remedy. You cannot sue your employer and you cannot sue co-workers for work-related injuries. Comp was the “exclusive remedy” for the injured player. It’s interesting to note that the unions for all the major pro-sports leagues (NFL, NBA, NHL and MLB) filed a friends-of-the-court brief in Lotysz’s behalf, arguing that team doctors are actually independent contractors. (You can view a detailed case study of Lotysz’s story here.)
The fact that Lotysz’s claim falls under the workers compensation system is not all bad. While he cannot sue the doctors for malpractice, he is eligible for indemnity benefits (admittedly chump change compared to a professional lineman’s salary) and for lifetime medical benefits for any treatments related to the injury (given the apparent permanency of his disability, this could turn out to be a significant benefit).
It is important to note that hospitals and similar medical facilities that treat both the public and their own employees may not find the courts so receptive to the “exclusive remedy” approach. For the most part, when hospitals treat their own employees for work related injuries, they become a third party vendor. If employees are unhappy with the treatment, they usually have the option of pursuing tort remedies. The main difference, I would guess, is that the hospitals routinely treat the public, while the “team doctors” have a more limited practice.
Docs and Jocks
The Lotysz opinion is binding only in New York. It’s possible that under similar circumstances other states will conclude that team doctors are indeed third parties and thus liable to lawsuits for malpractice. In the world of professional athletics, the medical profession is intricately involved in what from time to time may be ambiguous circumstances. With such enormous sums of money at stake, owners may pressure doctors to rush star athletes back onto the field. Permanent damage may result. Under these circumstances the player will certainly want to pursue a tort remedy. Whether this option is available to the athlete remains a state by state situation.

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The history of workers compensation

Wednesday, August 11th, 2004

I stumbled on an interesting essay at the Florida Department of Financial Services’ site…it’s an overview of the historical evolution of workers compensation from ancient times to the present, one of the best treatments I’ve seen on the topic. In addition to exploring the European roots, it presents an overview of the system’s development throughout the United States, with particular emphasis on legal developments in Florida.
Some reports state that the move to offer protection for injured workers really had its genesis in the German guilds, a system that might be seen as a forerunner of the modern day labor movement. Things really gathered steam in the mid 1800s, both in Germany and England. Here’s an excerpt from the Florida essay about a pivotal point of development in Great Britain:
“Barristers, solicitors and others with legal knowledge and training came forward in increasingly large numbers from 1850 forward and represented the injured workers on a contingency or percentage of what they could collect basis. Although the burden of proof was on the worker as well as other legal expenses, the courts became backlogged and the general public suffered from this unfair and inefficient system as crowded dockets and few judges delayed other civil actions. In the midst of this chaos and confusion, it was noticed that the worker was beginning to prevail in these actions and with the growing legal profession’s assistance were tying up attaching machinery, buildings and property of the employers through liens and attachments.
In 1897, England repealed the employer’s liability act of 1880 and replaced it with a “workmen’s” compensation act. Meanwhile, the storm that swept through Europe during this period of industrialization reached the shores of the United States fueled by the aftermath of the Civil War from 1861-1865.”
Here in the United States, workers comp wasn’t enacted in this country until 1911. Wisconsin was the first state to adopt a law, and by 1948, every state had some form of “workman’s comp.” At essence, this social insurance is a pact between employers and employees. Employers are mandated to cover medical care and provide wage replacement for injured workers; in exchange for this protection, the workers compensation becomes the exclusive remedy for workers. Although the courts have upheld this doctrine for nearly a century, in some instances, such as willful intent or bad faith, court challenges have succeeded in piecing the exclusivity.
Related
For history buffs, here’s another historical overview entitled Workers Compensation, Federalism, and the Heavy Hand of History (pdf). It’s a long and academic treatment that explores why workers comp remains the purview of state rather than the federal government by looking at the system’s historical roots. And for our northern neighbors, I present the Evolution of the Workers’ Compensation System in Canada.

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