By Alan Pierce

The year 1911 saw the enactment of this country’s first state-based Workers’ Compensation laws. The effects of the Industrial Revolution begun some decades earlier made it necessary to change the way the costs associated with workplace injuries and deaths were compensated.

Wisconsin claims credit for the first constitutional statute (earlier attempts failed constitutional muster) with Massachusetts and eight more states not far behind. Thirty-six other states followed by the end of the decade.

So it’s no surprise that 2011 will see various commemorations of this social, economic and legal milestone.

Here in Massachusetts, generally acknowledged as the nation’s second state to pass a Workers’ compensation statute (signed into law by Governor Eugene H. Foss, July 28, 1911) plans have been underway to mark this auspicious occasion.

On April 7, 2011 Massachusetts will be holding a centennial commemoration that has attracted interest across the country.

Before detailing our plans in Massachusetts, it is worthwhile to briefly examine the historical origins of a concept of a no-fault based system of compensating job related injuries and deaths. Who then can lay claim to the first model of a modern Workers’ Compensation system?

EARLY HISTORY OF WORKERS’ COMPENSATION

According to Gregory Guyton in A Brief History of Workers’ Compensation, Iowa Orthopedic Journal, 1999, in approximately 2050 B.C., in ancient Sumeria (now Iraq), the law of Ur contained in Nippur Tablet No, 3191 provided for compensation for injury to a worker’s specific body parts. Under ancient Arab law, the loss of a thumb was worth one-half the value of a finger. The loss of a penis however was compensated by the amount of the length lost. The manner of estimating that however, is a fact lost to history. Similar systems existed and are contained in Hammurabi’s Code in 1750 B.C. as well as in ancient Greek, Roman and Chinese law. The common denominator in most if not all of these early schemes was the compensation for “schedules” for specific injuries which determined specific monetary rewards. This concept of an “impairment” (the loss of function of a body part) as distinct from a “disability” (the loss of ability to perform specific tasks remains with us today.

Jumping ahead a couple of thousand years,

Stephen Talty in Empire of Blue Water: Captain Morgan’s Great Pirate Army, Crown Publishing, (2007) describes the legendary English privateer Capt. Henry Morgan (of the rum company fame) who in the mid 1600’s had a ship’s constitution that provided for the “recompense and reward each one ought to have that is either wounded or maimed in his body, suffering the loss of any limb, by that voyage.” The loss of a right arm was worth 600 pieces of eight; the left arm:500; right leg :500, left leg: 400 and so forth.

Today’s workers’ compensation laws owe their origin to Prussian Chancellor Otto von Bismarck who in a political move to mitigate social unrest, created the Employer’s Liability Law of 1871. In 1884 he established Workers’ Accident Insurance. This program not only provided monetary benefits but medical and rehabilitation benefits as well. The centerpiece of von Bismarck’s plan was the shielding of employers from civil lawsuits; thus the exclusive remedy doctrine was born.

ORGANIZING WORKERS’ COMPENSATION LAWYERS

Aside from the fascinating history of the origins of the concept of today’s workers’ compensation statutes, organizations such as WILG, a specialized bar association committed to protecting the interests of injured workers and their families and educating those lawyers who represent them is equally interesting.

Look for example at the genesis of today’s American Association for Justice (AAJ) previously known as ATLA.

ATLA, when formed, was known as NACCA and the story of its founding should also be noted in this centennial year.

As recounted by Richard Jacobson and Jeffrey R. White in their book, David v. Goliath: ATLA and the Fight for Everyday Justice, published by the ATLA Press in 2003:

“It was the fall of 1945, at a hotel in Winston-Salem, NC, the International Association of Industrial Accident Boards and Commissions (IAIABC) was holding its annual convention. Champagne flowed from a fountain in the middle of the room, Crocks of North Carolina moonshine, festooned with colored papers, stood invitingly alongside.

The commissioners, standing in knots of threes and fours, were the arbitrators and judges who ruled on the Workers’ Compensation claims that arose out of two million accidents each year in the workplaces of American, Circulating comfortably among the commissioners were their hosts for this evening, the attorneys and lobbyists representing employers and Workers’ Compensation carriers who regularly appeared before the commissioners,. A bottle of rare scotch appeared and was seized upon happily by a commissioner from Portland, Oregon.

One subject of sharp discussion was a new and outspoken treatise, Horovitz on Workmen’s Compensation, published in late 1944. Negligence rules, which came to dominate the law of torts in the previous century, had been used by courts to protect American industries from responsibility for the widespread injury and death that the Industrial Revolution visited upon workers, State Workers’ Compensation statutes were supposed to change all that. Now, Professor Horovitz charged, workers’ compensation law had itself developed rules and procedures that favored employers and shut out the law’s intended beneficiaries. Horovitz cast an unwelcome spotlight on the human tragedy of workers who were killed or injured by the thousands in workplace accidents while the insurance industry, protected at every turn by friendly legislators and compliant administrators, stubbornly fought every claim for benefits.

Rarely had such stern criticism of the workers’ compensation system issued forth from the pages of a scholarly treatise. And so it was with some consternation that many of the commissioners recognized the tall, ascetic man with piercing dark eyes behind horn-rimmed glasses, talking animatedly at their party. It was Samuel Horovitz.

Horovitz graduated from Harvard Law School in 1922. He first went to work as an insurance adjuster for the U.S. Casualty Company. When he saw how poorly injured workers were represented, he knew he’s found his life’s work.

The other plaintiffs’ lawyer [who] was also present at that crucial cocktail party, courtesy of organized labor, Ben Marcus, counsel for the United Automobile Workers in matters of health and safety, represented the Congress of Industrial Organizations (CIO) as an associate member of the IAIABC.

He (Marcus) had just read Horovitz on Workmen’s Compensation, and it was “burning a hole” in his mind. “I just had to talk to Sam,” he recalled. He knew that Horovitz would be attending the Winston-Salem meeting. “The first thing I did was to seek out Sam Horovitz in the crowded room, pushing my way through the lobbyists and insurance representatives. We met. It was a meeting of like souls.”

As the two men talked, the magnitude of the problem became clear. “There were tens of thousands of litigated workmen’s compensation cases,” Horovitz realized “About half the workers came alone, to do battle against skilled insurance counsel, doctors, and investigators,” Not only were workers in desperate need of legal representation but they needed better representation. Horovitz the law professor was convinced that “there was also need for more legal knowledge on the part of the plaintiffs’ lawyer.” Marcus recalled that “Sam and I began to exchange our thoughts on the present status of workers’ compensation and the need—which was beginning to be felt through his book—for plaintiff lawyers to know more about the entire field.”

The notion of an organization devoted to educating practitioners across the country was beginning to take shape in Sam’s mind. His initial vision was of a relatively small fellowship consisting of two experienced workers’ compensation lawyers from each state. They would communicate with and educate each other about legal developments around the country affecting injured workers. These lawyers, in turn, would spread the word in their own states. They would also work with unions to lobby state legislature for more equitable laws to protect workers, increased compensation levels and adequate fees for legal representation of the injured.

In 1946, Horovitz, Marcus and others formed a national organization originally called the National Association of Compensation Attorneys (NACA) soon changed to the National Association of Claimant’s Compensation Attorneys (NACCA). The name was changed to ATLA in 1965 and now is known as the American Association for Justice (AAJ).

Jacobson & White’s book is a must read for anyone interested in how what began as a workers’ compensation specialty bar organization grew into one of the country’s largest claimant/plaintiff bar associations.

CENTENNIAL COMMEMORATION IN MASSACHUSETTS

Massachusetts plans to commemorate this centennial originated with the Massachusetts Academy of Trial Attorneys, which for the past decade hosted an annual Workers’ Compensation Bench/Bar Dinner.

On April 7, 2011, WILG along with the Massachusetts Academy of Trial Attorneys, the Massachusetts Bar Association and the Department of Industrial Accidents will host a centennial commemoration of workers’ compensation, not only in Massachusetts but the country as well.

Our focus will be recognition of 100 years of workers’ compensation remembering how this unique area of law originated and developed with a look toward the future and examining forces at work that may change how workplace injuries are compensated. A planning committee comprised of representatives of the claimant and insurer bar, Department of Industrial Accident representatives and other stakeholders in the system has been meeting periodically for almost three years.

While other states are planning similar commemorations, ours in Massachusetts has become a national event attracting groups such as the WILG, American Bar Association’s Workers’ Compensation sections, and the National Association of Workers’ Compensation Judiciary, among others.

Our plans have three major components: a symposium featuring four of the nation’s leading scholars of workers’ compensation as an economic, labor relations and legal concept; a book covering the history of the Massachusetts Industrial Accident Board and a dinner bringing everyone together at the Rose Kennedy Ballroom at the Intercontinental Hotel in Boston. The other bar groups coming to Boston to join us will be holding their own programming, including three mornings of informative CLEs as part of the ABA TIPS/Workers’ Compensation and Labor and Employment Law Committee’s annual spring meeting.

The ABA’s College of Workers’ Compensation Lawyers will also hold its annual dinner inducting the 2011 Class of Fellows on April 9, 2011. WILG will be holding its spring business meeting here as well.

SYMPOSIUM

The symposium to be held during the afternoon of April 7, 2011 will be chaired by Prof. Emeritus John Burton, perhaps the leading authority on workers’ compensation, both nationally and internationally. Burton, who has taught economics and labor relations at Rutgers and Cornell Universities, was President Nixon’s appointed Chair of the 1972 National Commission on Workers’ Compensation which resulted in recommendations responsible for the extended period of major workers’ compensation reforms that closed out the last quarter of the 20th century.

Prof. Burton has invited Emily Spieler, Dean of Northeastern University Law School, Dr. Richard Victor, Executive Director of the Workers’ Compensation Research Institute, and Prof. Les Boden of Boston University to join him. Among the subjects to be explored are a discussion of federal and state responsibility for workers’ compensation; the extent of coverage of injuries and disease; the impact of changes in healthcare and what “universal” healthcare may mean for workers’ compensation systems; adequacy and equity of benefits among other topics.

BOOK ON MASSACHUSETTS INDUSTRIAL ACCIDENT BOARD

Attorney and WILG member, Joseph Agnelli Jr. of the Keches Law Group, has authored The “Board” A History of the First Century of the Massachusetts Industrial Accident Board and the Workers’ Compensation Act.

Agnelli’s book contains a comprehensive history of workers’ compensation in Massachusetts focusing on how our Industrial Accident Board was originally organized. The book profiles many of the fascinating commissioners, judges and attorneys who help shape the practice of workers’ compensation law at the Department of Industrial Accidents.

The book also features a copy of the Workers’ Compensation Statute signed into law by Governor Eugene H. Foss on July 28, 1911; a copy of the first insurance policy (policy no. 1) issued to the Everett Mills by the Massachusetts Employee’s Insurance Association (M.E.I.A.), the entity that was to become Liberty Mutual Insurance Company.

According to Agnelli’s foreward: “When pondering a suitable way to commemorate such a momentous event, it became clear that something needed to be written about the countless numbers of individuals who have played a role in its long history, to the legislators who were instrumental in its passage of 1911, the members of the first Industrial Accident Board in 1912, the men and women who have served as either Commissioners or Administrative Judges on the Board, those who pioneered the early practice before the Board, and to past and current personalities, this book is a tribute to their efforts in perpetuating the spirit of the Act.”

DINNER FEATURING LEX LARSON

The dinner on Thursday evening, April 7, 2011, will be held in a remarkable venue, a ballroom that can accommodate up to 700 people. Our key note speaker is Lex Larson. Lex is the current author of the two treatises “Workers’ Compensation Law” 12 vols. (Matthew Bender) and its three volume Desk Edition. Lex is the son of the late Arthur Larson, who as a professor at Cornell Law School first published his treatise in 1952.

Lex is a workers’ compensation authority in his own right and he promises to be an entertaining addition to our evening. A musician as well as a scholar, Lex has written and will perform several of his original compositions such as “OSHA Man Blues” and the “Industrial Commission Fight Song”.

Early reservations are a must. To purchase dinner tickets or for further information, contact terri@alanspierce.com OR contact Alan Pierce at 978-745-0914.

We hope to see all of you on April 7, 2011!

This article is republished with permission of the Workers’ Injury Law & Advocacy Group.

For additional information about the above symposium and dinner, see Making History: Celebrating 100 Years of Workers’ Compensation.