Volume 69, Spring 2017, Issue 3


Volume 69, Spring 2017, Issue 3


Ellen Relkin
John Tooey was frequently exposed to asbestos dust while working as a salesman of industrial asbestos products. He developed mesothelioma (a cancer caused by asbestos exposure that is nearly always fatal) in 2007 and died less than one year later. Spurgeon Landis worked for a manufacturer of welding rods, and was also exposed to asbestos throughout his employment. He, too, was diagnosed with mesothelioma in 2007. Both men worked in Pennsylvania, and under the Commonwealth’s workers’ compensation statute, a worker could qualify for benefits for contracting an occupational disease only if the disease manifested itself within 300 weeks (roughly 5% years) after the last exposure to the toxic substance associated with the disease. The average latency period for mesothelioma is 30 to 50 years, which made it impossible for Pennsylvania mesothelioma victims to pursue a claim for workers’ compensation benefits. The Pennsylvania workers’ compensation statute also provided that benefits under the statute were the exclusive remedy for any occupational disease covered by the statute. Thus, the statute potentially deprived victims of mesothelioma, and other occupational diseases with a long latency period, of any opportunity for compensation for their injuries. . . .

(Re)Assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017

Emily A. Spieler

Too many workers are injured, killed, or made ill by their work. In the United States, the legal system addresses occupational safety in two ways: through a preventive regulatory regime, sometimes described as ossified and weak, and through a no-fault strict liability compensation system that provides limited benefits to workers and generally protects employers from further liability. This article investigates the second component of this legal system, sometimes called the “grand bargain” in recognition of its unique roots in the early twentieth century. . . .

Economic Incentives in Workers’ Compensation: A Holistic, International Perspective

Alison Morantz, Julia Bodson, Sarah Michael Levine & Marcus Vilhelm Palsson

It is tempting to view each U.S. state’s workers’ compensation system as an autonomous legal regime whose discrete statutory and regulatory characteristics determine the efficiency and adequacy with which injured workers are compensated within its boundaries. To a substantial degree, this description is accurate. In the United States, most workers’ compensation systems are creatures of state law, and their provisions vary widely across state lines. A vast body of empirical scholarship-to which many of the authors in this volume have made seminal contributions-bears out the expectation that many differences in regulatory design affect the behavior of key stakeholders. For example, cross-state differences in wage replacement ratios, compensability of disability, diseases, and mental illnesses, calculation of unscheduled permanent partial disabilities, statutory waiting and retroactive periods, insurance regulation, experience rating, control over the pool of providers, litigation and administrative appeals processes, and medical provider fee schedules have been shown to affect claiming behavior, utilization, and/or systemic costs in economically consequential ways. Careful attention to such variations in institutional design is vital for those who care about worker safety and health. . . .

Can State Constitutions Block the Workers’ Compensation Race to the Bottom

Robert F. Williams

The enactment of workmen’s compensation legislation occasioned one of the nation’s great battles over judicial review of reform legislation. As we have seen, the enactment of nineteenth-century tort reform legislation led to relatively few cases striking down legislation. But the enactment beginning in 1910 of workmen’s compensation legislation (as today’s gender-neutral workers’ compensation statutes were then known) led several of the nation’s courts to strike down the new compensation programs. The result was a political crisis for some of the nation’s leading state courts, the New York Court of Appeals chief among them. . . .

Accommodating Tort Law: Alternative Remedies for Workplace Injuries

Robert L. Rabin

Late in the summer of 1941, a waitress at Tiny’s Waffle Shop, an inconspicuous locale in Merced, California, set the stage for a tort case that would become foundational to the development of products liability law in the twentieth century. As Gladys Escola restocked the refrigerator in the establishment, she was seriously injured by an exploding Coca-Cola bottle. The majority opinion of the California Supreme Court in Escola v. Coca Cola Bottling Co. of Fresno, which affirmed recovery on a negligence theory of res ipsa loquitur, ordinarily would have gone largely unnoticed. But Justice Roger Traynor, in a concurring opinion that would become a landmark of products liability law a generation later, demurred from the majority approach, instead proposing a theory of strict liability in tort for product injuries. . . .


Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice Commentaries

George W. Conk

The “Grand Bargain,” is the exchange of workers’ tort remedies against their employers, for an exclusive, assured “strict” but limited . .. liability.” As Robert Rabin has explained, workers lost an unreliable common law right to sue employers for negligently caused, accidental injury. In exchange, a statutory remedy assured recoveries for accidental injuries arising from and in the course of employment. Aside from the exclusive remedy against the employer, as Professor Rabin points out, tort has persisted, with its promise of full compensation rather than the limited scheduled benefits of workers’ compensation. The third-party action is also complementary because workers’ compensation health and wage replacement benefits enable workers to survive and to subsist while third-party actions are pending as Professor Rabin notes-and as my thirty years of practice as a plaintiffs lawyer confirms. The massive, and often protracted, third-party asbestos product-liability litigation is prime evidence of that. In a comprehensive article, overseer of asbestos Multi-District Litigation 875 (“MDL-875”) District Judge Eduardo Robreno has set forth the history of that federal consolidation of claims. Employers (or their workers’ compensation insurers) hold liens on third-party actions which enable them to recover benefits they have paid. Third-party actions thus offset the costs to employers of the Centers for Disease Control and Prevention (“CDC’)-estimated $25 billion annual cost of work-related vehicular accidents. . . .

Challenges of the Changing Legal Structure of Workers’ Compensation and the Changing Workforce Commentaries

Charles R. Davoli

Not much can be added to Emily Spieler’s excellent and very thorough symposium article providing a historical and legal overview of developments in state workers’ compensation systems. Her historical review and summary of current issues confronting the nation’s state systems should be required reading for every workers’ compensation practitioner concerned about the current ‘death spiral’ of the century- old “Grand Bargain.” Whether such a system of social insurance survives in the twenty-first century or continues its decline and eventual demise, in substantial part, depends on the adaptability and resilience of the current $89 billion workers’ compensation industry that has allegedly evolved. Notwithstanding that the rhetoric often espoused the principle mission of the “industry” as the welfare and best interests of the injured worker, the reality experienced from battles in the trenches over ever-eroding benefits amidst ever-increasing and more onerous administrative and dispute resolution proceedings-when coupled with increasing medical and employer costs in many states- makes a more compelling argument supporting a higher priority for survival and profitability of the “industry” rather than the welfare of injured workers and their families. The fact is that workers’ compensation insurance is still the second-most profitable line of insurance next to automobile liability insurance. Neither the insurance market nor the industry is likely to surrender and roll over to eagerly accommodate a cheaper and more efficient scheme of covering liability to employers and employees for work-related injuries and occupational diseases. . . .


Long-Term Trends Related to the Grand Bargain of Workers’ Compensation Comments

Price V. Fishback

I have the honor of commenting on a marvelous and comprehensive paper by Professor Emily Spieler that discusses the changes over the last 100 years in workers’ compensation and highlights the challenges to the Grand Bargain of workers’ compensation today. Professor Spieler emphasizes how current workers’ compensation programs in 2017 fall short of a standard to which they should be held. She largely bases that standard on the nineteen essential recommendations of the National Commission on State Workmen’s Compensation Laws, headed by John Burton in the early 1970s, that pointed out great shortfalls in workers’ compensation. Although reform commissions have often set standards that few ever meet, the National Commission had representatives from a broad range of constituencies at the time and established a consensus among that group. As a result, the states then responded with a series of reforms that improved the benefits paid to workers and the operation of workers’ compensation between the late 1970s and 1980s. Arguably, the commission was one of the most successful commissions in American history, particularly given that the federal government never established authority over workers’ compensation and that fifty states and the District of Columbia each had to pass a broad range of new regulations to comply with the recommendations. In 1972, the average number of the Commission’s nineteen essential recommendations met by the states was 6.79. The average had risen to 12.1 by 1980 and then rose again to 12.85 in 2004, even though the number of requirements met had fallen in eleven states. . . .

Blinded by Moral Hazard Comments

Leslie I. Boden & Monica Galizzi

Alison Morantz’s article Economic Incentives in Workers’ Compensation: A Holistic, International Perspective represents a valuable contribution to our understanding of the workers’ compensation system. We believe her contribution to be particularly insightful because of her ability to highlight that a proper assessment of the system can only be performed if it also accounts for labor market institutions and regulations, safety and health norms, and the wider network of social insurance in addition to market behavior. She reminds us of the need to continue to study the problem of benefit adequacy and of cost shifting toward other social insurance programs. Finally, one of her main contributions is her attempt to assess the functioning of the U.S. workers’ compensation system in light of other countries’ experiences. . . .

Economic Incentives in Workers’ Compensation: A Holistic, International Perspective Comments

John F. Burton, Jr.

The Morantz article is an outstanding addition to the literature on workers’ compensation. Morantz provided an insightful summary of the research in recent decades on both the United States and other countries’ prevention and disability programs, presented a taxonomy for analyzing the research, and identified policy issues that deserve to be resolved if the workers’ compensation program is to be an important contributor to prevention, compensation, and rehabilitation. . . .

Economic Incentives in Workers’ Compensation: A Holistic, International Perspective Comments

James Lynch

Alison Morantz’s article, Economic Incentives in Workers’ Compensation: A Holistic, International Perspective takes an interesting, unique approach to understanding workplace safety, the benefits received by those injured at work and how well the U.S. workers’ compensation system fulfills its role. The author undertakes a daunting bit of research to try to compare the adequacy of the American program to those of Canada, Europe, and Australasia. It is a difficult task, in part because the U.S. system spends far more than its counterparts on medical expenses, as the author documents. . . .


Reflections on the Persistence of Tort and the Demise of the Grand Bargain Transcripts

Michael C. Duff

Two overriding themes appear to have emerged during the course of this symposium. The first is that we seem to have lost a sense of humanitarianism as the underpinning of the workers’ compensation system at large. The second is that, as a society, we have lost any real sense of workers’ compensation as a societal bargain-an actual negotiation between co-equal partners. It is very hard to come away with any sense other than that workers’ compensation is no longer negotiated (if it ever was), but that it is dictated from “above.” . . .

Workplace Injuries as a Constitutional Law Issue Transcripts

Justin R. Long

You have heard the other speakers offer some immensely practical strategies, new places to look for sources of law, new texts to employ in what Professor Williams concedes are defensive skirmishes to preserve what remains of the compensation system in states where it is under attack. And you have also heard from Judge Freedman that these are challenging arguments to make regardless of how clear the texts might seem or how strong your analysis might be, because in every state constitutional case you have an additional task that you do not have when arguing either federal constitutional law or even federal statutory law. And that’s that the documents should matter, and that judges should follow it. You have to, in each and every case, convince the court that the state constitution is something they should abide by and essentially convince them from scratch. So that leaves state constitutions disfavored in a variety of ways. People don’t know about them. People don’t feel intuitively that they have the kind of majesty or power that we associate with the Federal Constitution. But they really can embody deep constitutional values, and the opportunity to raise those questions is there for those who can do so. . . .


Fired – I Can’t Get Fired. I’ve Got Tenure: Teachers’ Unions, Tenure, and a Failure to Educate Note

John A. Burke

In the United States, many trends seem to start on the West Coast and migrate towards the East Coast. Arguably no state has a greater trend-setting legacy than California-politically, socially, and culturally, what is vogue in America frequently originates in California. While not everything that comes out of California is beneficial to the nation at-large-the Kardashians, for example-a fierce and polarizing legal battle that recently concluded in the Golden State could be the catalyst for a tectonic shift in how the United States approaches public education. In June 2014, Superior Court Judge Rolf M. Treu issued a “tentative decision” in the highly publicized case, Vergara v. California (“Vergara I“). The case in Vergara I was based on the premise that California’s “employment rules leave so many ineffective teachers on the job that some students – many of them low- income and minority – fail to receive the education guaranteed by the state constitution.” Specifically, the challenged statutes were the “Permanent Employment Statute,” the “Dismissal Statutes,” and the “‘Last-in, First-Out’ (“LIFO”) Layoff Statute.” The Superior Court’s decision in Vergara I was ultimately reversed on appeal, and the Supreme Court of California thereafter denied a petition to review the case; however, while judicially crafted tenure reform may be stymied in California, its legacy has spread across the country. . . .