Before the enactment of workers’ compensation laws, work related injuries were governed by the common law of torts. An employee injured on the job could sue the employer for damages. In order to recover, the injured employee or the dependents of an employee killed in an industrial accident had to prove that the employer was liable under common law negligence principles, for causing the accident. In many cases, the employer could escape liability under one or more of a trio of defenses. The defense of “contributory negligence” held that if the injured employee’s own negligence contributed, however slightly, to the accident, there could be no recovery. The “fellow servant rule” prevented recovery if the injury or death resulted from the negligence of a co-worker, and the “assumption of the risk” doctrine barred recovery if the injured or deceased worker was aware of the dangers of the job.
Under the common law, the injured workers or their surviving family members very rarely recovered. In the early days of the twentieth century, a study of 370 fatal work-related injuries in Cuyahoga County revealed that the survivors recovered damages or received a settlement in only 36 per cent of these cases. The average recovery was less than $850.00. A study of non-fatal injuries during the same period showed that in these cases less than 2o per cent of the injured workers ever made any recovery.
Workers’ compensation laws were enacted in Ohio because it came to be widely believed that the common law tort system was inadequate to meet the problems associated with work-related injuries in an increasingly industrialized economy. The vast majority of work-related accidents resulted in no recovery of lost wages and medical bills, and in the few cases where some recovery was made, it was typically inadequate to compensate for the economic loss caused by the accident. Workers’ compensation laws, which provide for payment of medical bills and at least partial replacement of lost wages resulting from a work-related injury without regard to negligence or fault, were adopted throughout the United States because the common law system often resulted in injured workers and their families being reduced to poverty.
Why it is important to bring up what, to many, may seem like ancient history? My answer is “People who forget the past are doomed to repeat it.” Legislation limiting the types of injuries covered by workers’ compensation has been common over the last twenty years. Vocational rehabilitation programs rarely make a serious effort to help workers who will never be able to return to their previous jobs to gain the knowledge and skills they need to make a successful transition to a new occupation. Court decisions have developed a body of law on the subject of “voluntary abandonment of employment” which often results in injured workers being denied compensation for reasons having nothing to do with whether their work-related injuries have left them unable to work.
A century ago, lawmakers in Ohio were committed as a matter of public policy to workers’ compensation laws to prevent injured workers and their families from being reduced to poverty. Today, there is reason to ask whether that commitment survives.