Our good friend Tom Domer posted the following article about the history of workers compensation in America. Nebraska, like Wisconsin, was an early pioneer. Our Workers Compensation law was effective in 1913. Current efforts to allow business to opt of workers compensation protection for workers seems to be gaining momentum. Going back to the 19th century in treatment of workers is not acceptable. We can’t let the forces of big business and greed take us back to the robber baron days of old. Reading the history and understanding how important workers compensation protection is essential and I thank Tom for his well written and thoughtful discussion.
More than a century ago, Wisconsin’s initial efforts in worker’s compensation led the nation. In 1911 Wisconsin became the first state in the nation to place a broad constitutionally valid worker’s compensation system into operation. Recent events, specifically Oklahoma’s passing legislation to allow employers to “opt out” of worker’s compensation (following the “lead” of Texas) calls into question the great bargain made between employers and workers over a century ago. Prior to the enactment of worker’s compensation in the early 20th Century, workers who were injured on the job had to overcome three common law obstacles in order to recover from their employer.
Under contributory negligence, a worker could not recover from the employer if the worker had been negligent in any way and that negligence contributed to the accident, regardless of how negligent the employer may have been.
Under assumption of risk, if a worker knew or should have known of the danger inherent in the task at issue before undertaking it, the employer was not liable for an accident arising from the task even if the employee was not negligent.
Under the fellow servant rule, employers could not be held liable for accidents caused by fellow employees.
The combined effect of these common law defenses served to deny workers adequate remedies for their injuries. On the flip side, employers who were found negligent in causing workers’ injuries were subject to the vagaries of a jury with no limitation on dollar amount recoveries. Wisconsin’s initial attempt at worker’s compensation contained an “opt out” provision, not unlike the “opt out” provisions currently in vogue in Texas and Oklahoma. Within a few years, however, in 1913, spurred by slow employer acceptance of the law, the legislature provided that any employer who did not explicitly opt out of the law would be presumed to have accepted it. In 1919 Wisconsin’s law was extended to cover all employment related injuries whether accidental or not, including occupational exposure claims. Finally in 1931 when worker’s compensation had become a universally accepted part of Wisconsin industrial life, the law was made compulsory for virtually all employers and employees.
Wisconsin’s act is dynamic, reflecting changing trends in employment (temporary help agencies, independent contractors, etc.) and changes in medical treatment, diagnosis, and surgical procedures (for example artificial disc replacement and joint replacements).
Wisconsin’s act is dynamic, reflecting changing trends in employment (temporary help agencies, independent contractors, etc.) and changes in medical treatment, diagnosis, and surgical procedures (for example artificial disc replacement and joint replacements). Proposed provisions to the Act from the worker’s compensation Department and from labor and management sources are funneled through the Worker’s Compensation Advisory Council, which (after significant debate) proposes an agreed upon bill to the legislature every two years. Input to the Council from lawyers, doctors, employers, and insurers on current issues in worker’s compensation makes Wisconsin’s Act responsive to its constituents.
Unfortunately other constituents (like those in Texas and Oklahoma) based primarily on a short sighted and single minded desire to reduce costs for businesses, have passed legislation allowing employers to opt out of worker’s compensation, often with some disastrous results.
Come back next week for Part 2, a closer examination of the worker’s compensation systems in Texas and Oklahoma and how they can effect worker safety.