Larson, Arthur

English

bepress Legal Repository

Foreword: Workmen’s Compensation in Ohio

Duke Law Scholarship Repository

OHIO STATE LAW JOURNALVolume 19 Autumn 1958 Number 4WORKMEN'S COMPENSATION IN OHIOFOREWORDARTHUR LARSON*Emerson once said that, if you take a jar of honey and turn it up-side down, the first two-thirds of the contents will pour out almostimmediately But you could be turned into a marble statue and- holdthe jar into eternity, and the last one-third would never all come out.So it has been with workmen's compensation in America. In thedecade from 1911 to 1921, when revulsion against the -inadequacies ofcommon law remedies for industrial injuries was at white heat, work-men's compensation laws burst across the country so rapidly that all buteight states had such laws by 1920.It took thirty years to cover the remaining eight.Similarly, for -various reasons chiefly having to do with adminis-trative difficulty, coverage of the original acts was incomplete, as toemployers and employees covered, lands of injury and disease, and cir-cumstances of injury In forty years we have never been, able to closethose gaps.As to coverage of persons: we still see the same old exceptions inmost states: agricultural, domestic, charitable, educational, small-firm.As to kinds of injury and disease: we still in some states see, forexample, narrow schedules of occupational disease, and discriminationagainst mental and non-traumatic harms.As to circumstances of injury- we still see a variety of restrictons-"by accident," narrow "ansing-out-of" tests, and the like.The reason for this honey-jar phenomenon is not at all mysterious.The same thing has happened in almost every field of remedial legis-lation or action. We get perhaps something under half of the workforce covered by minimum wage legislation and two-thirds by un-employment compensation, we reduce air and automobile accidents taa certain level, we get teacher shortages down to a certain point; thenwe seem to conclude that the unsolved problems and evils are, thoughunfortunate, somewhat tolerable, and we ease up on the pressure forimprovement. The most potent groups and organizations lose some of*Director, World Rule of Law Center, Duke Law School.OHIO STATE LAW JOURNALthe original burning fervor for reform. The unprotected minority areapt to be weak and unorganized.Of course, improvements are constantly being made in workmen'scompensation.But the trouble is that the new demands on workmen's compen-sation are outrunning the progress being made in catching up with olddeficiencies!We must remember that we are dealing with a piece of legislationthat, in essence, is a product of the Gay Nineties. Most of our acts,as mentioned above, are themselves over forty years old, and they inturn were heavily patterned after the British Act of 1897.In some states, compensation acts, by virtue of constant amend-ment, have been brought to a reasonably advanced state. But even thebest acts are unprepared for many of the demands put upon them bythe new conditions of today and tomorrow.Let us merely list several of the contemporary developments thatrequire adjustment in compensation laws.CORRELATION WrrH OTHER SOCIAL INSURANCE. When work-men's compensation started, it had the field to itself. Now there is anurgent need to incorporate specific provisions defining the relation ofworkmen's compensation benefits to social security and unemploymentinsurance benefits, as well as to lesser systems.ATOMIc RADIATION AND OTHER NEW HAZARDS. Entire newcategories of injury and disease are already upon us, and others may belooming in the future. States with specific lists of covered occupationaldiseases are still far from catching up with diseases that were well identi-fied over twenty-five years ago, such as silicosis. Must we again waittwenty-five years before we get around to dealing with radiation poison-ing, hard metal poisoning, and other new diseases?MENTAL AND NERVOUS INJURY. When the original acts werepassed, mental injury was too elusive to be easily handled as a subjectof liability. We still have much to learn, but we know enough by nowto test work-connection in most cases, and we have little excuse forcontinued slighting of this peculiarly tragic kind of disability.CONFLICT OF LAWS. Jurisdictional questions have multiplied inrecent years, because of the high volume of interstate employment intransportation, construction, and commerce. The gears of our stateconflict of laws sections are wildly out of adjustment. Sometimes theypile up all over each other, with great clashing and jamming. Some-times they miss each other completely, so that the purpose of compen-sation is thwarted altogether.NEW EMPLOYMENTS. All kinds of new categories of employmentare appearing, many of which miss coverage in the usual act: civil de-fense workers; workers on industrial farms; quasi-independent con-[Vol. 19FOREWORDtractors, who are employees in fact but contractors under common lawtests.SECOND INjuRY FUNDs. Great strides have been made in employ-ment of the physically handicapped. But many acts still do not have agood second-injury provision to facilitate this kind of employment,especially when the impairment is more subtle than obvious loss of amember.REHABILrrATION. Techniques of rehabilitation have been vastlyadvanced in recent years. Yet only a minority of statutes make aspecific effort to supply both the administrative supervision and thefinancial support that are necessary to make rehabilitation a standardconcomitant of compensation recovery.Many other examples of this kind could be given, but these mayserve to support the basic contention, which is that the problem of work-men's compensation is getting away from us faster than we are catchingup with it.What can we do about it?Most of all we need, before much longer, to make a Big Push.Improvements as usual will not do the job.I want to call particular attention to the fact that I am not talkingabout liberalization and generosity as such; I am talking about improve-ment. Often improvement will take the form of liberalization. Butoften it takes the form of greater efficiency and resultant savings--aswhen duplications between social insurances are eliminated, or costlyjurisdictional questions avoided, or compensation benefits and premiumsreduced by putting rehabilitated men -back to work.As one contribution to the special effort needed, especially inmeeting the sort of newer problems mentioned above, several of us inthe Labor Department prepared a check-list of successful and usefulprovisions for compensation acts. Although we had consulted with anumber of state administrators in advance, and although we offered thedraft merely for the convenience of states, the project fell victim tothe misguided notion that this modest and gentle service was really aveiled campaign to federalize workmen's compensation. However, Iunderstand that this draft is still being used as a guide in a number ofstates and has had an impact on specific legislative changes. It canserve a valuable purpose in making available to each state, in one place,the fruits of the best efforts, trials and errors, and draftsmanship, ofelI states.Of course, legislation is only part of the process of amelioration.Judicial decision contributes a large part toward helping the acts carryout their real purpose with increasing effectiveness. It is gratifying towatch the steady rounding-out of case law on such issues as the aggressordefense, hotel-fire injuries, heart attacks caused by normal exertion,and dozens of other similar developing doctrines. Now and then, in1958]540 OHIO STATE LAW JOURNAL [Vol. 19place of this measured advance, we see a display of dazzling decisionalprogress-as in the case of Michigan recently.The kind of improvement we need will require special efforts onall fronts: judicial, legislative, administrative, medical, academic, andprofessional.This symposium is a contribution to the kind of basic under-standing which must be central to any successful effort, and I com-mend the thoughtfulness of the editors of the Ohio State Law Journalin making it available to us.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5684&amp;context=faculty_scholarship

Foreword: Workmen’s Compensation in Ohio

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Duke Law Scholarship Repository