When I served as Commissioner of the West Virginia Workers’ Compensation Fund, I spoke to many groups: unions, injured workers, employers’ associations, and local and state-wide organizations such as the Chamber of Commerce and Rotary Clubs. Injury rates were high and workers’ compensation was expensive, particularly in the mining industry. Employers were universally resentful of the cost – although they rarely connected cost to injury rates. Many felt that employees were often inappropriately approved for benefits. In contrast, injured workers and union members believed strongly that deserving injured workers routinely did not receive benefits.
There is always some truth on all sides of these debates. But it is important to remember that employers get significant value for the cost of workers’ compensation.
First, of course, they receive immunity from tort actions: Workers’ compensation benefits are the exclusive remedy for injured workers against their employers. Given the growth in tort litigation over the last century, the breadth of this protection is of extraordinary value. In most states, there are no meaningful exceptions to the rule. Workers who are hurt through gross negligence by their employers are treated in exactly the same way as workers who are injured as a result of their own inattention. This is an essential element of basic workers’ compensation principles. The other critical element of these principles is that no-fault workers’ compensation systems are supposed to provide adequate medical and indemnity benefits to all workers injured at work. Yet employers’ groups lobby unremittingly for more restrictive compensability rules and lower benefits in order to reduce their costs – while they themselves maintain exactly the same level of protection from tort litigation. That is, the protection to employers remains constant even when costs are reduced and adequacy for workers is undermined.
Second, employers do not have to worry, as a legal matter, about the long-term fate of their workers who are injured. It is true, when workers’ compensation laws were passed, that there was no obligation at all to injured workers, except to those few who were successful in tort actions against their employers. But even now, in almost every state, workers who have recovered from work injuries have no continuing legal claim to employment with their original employer. Return to work programs that are offered by some employers are largely voluntary, motivated either by good will or cost-savings. Many workers are abandoned or even banned once injured.
What does this mean for the future? The arguments regarding employer cost are important. But don’t they belong within a context in which all of us think about adequacy of benefits to injured workers?
- Emily A. Spieler, Dean, Edwin Hadley Professor of Law, Northeastern University of Law