When the Workers’ Injury Law & Advocacy Group (WILG) met in Chicago during 2012 to mark the 40th anniversary of the National Commission on State Workmen’s Compensation Laws, it commemorated a fluke. The word on the industry/employer side of the street is that WILG’s not-so-secret pro-claimant’s attorney bias can tend towards the extreme, so as a non-member participant of the WILG Symposium, I was prepared for a lot of pro-injured worker hoopla. You could have knocked me over with a feather though when John Burton—who was after all the Chairman of the National Commission on State Workmen’s Compensation Laws—welcomed the attendees who had gathered to commemorate the commission’s 40th anniversary by asking whether the commission and its epic 1972 Report were “sui generis.” And I really started to sit up and take notice when speaker after speaker answered the sui generis question with a resounding ‘yes,’ thereby transforming what I (mistakenly) thought was a provocative musing on Burton’s part into the underlying theme of the entire conference event.
Let’s put this into perspective. The individuals who voiced their agreement with Burton’s view that the National Commission on State Workmen’s Compensation Laws was a chance happening stroke of accidental luck included the commission’s executive director (Peter Barth), its General Counsel and former Associate Executive Director (John Lewis), and a founding member of the National Academy of Social Insurance (James Ellenberger). These folks are much more than thought leaders in the workers’ compensation community—they are titans of social justice who have dedicated their entire lives to worker advocacy. Yet their attitude toward the national commission upon the 40th anniversary of its Report echoed the sentiments that Donald Elisburg expressed in an article he wrote several years after the 30th anniversary of the national commission that appeared in Volume 1 of John F. Burton’s Workers’ Compensation Compendium 2005-06. In “The National Commission on State Workmen’s Compensation Laws: Reflections on the Thirtieth Anniversary—Plus Two and Counting,” Elisburg talks about his procrastination in meeting Burton’s submission deadline for the article:
“I finally concluded that working against me this time is a profound sense of anger and disappointment at our collective failure to achieve the middling lofty goals for the state workers’ compensation systems. Instead, we continue in the fourth decade after the Commission’s Report to fight the old wars and we fail completely to focus on whether the state workers’ compensation systems deliver what they are supposed to for injured workers and their employers.”
Now don’t get me wrong—whether or not the commission was a fluke, it’s impossible not to be struck by its extraordinary piece of work. After making a comprehensive study and evaluation of the state workers’ compensation laws, the commission—after only one year—issued a report on its findings that contained 84 recommendations, 19 of which were deemed to be “essential recommendations” that dealt primarily with those aspects of state law (such as indemnity benefits, coverage, and the provisions of health care benefits) that all states should be expected to provide in their workers’ compensation programs. The contrast between state workers’ compensation programs that existed before and after 1972 is nothing short of stunning, and we have the national commission to thank for the universal availability of full medical benefits, occupational disease coverage, automatic escalation clauses, and add-on legal fees.
While listening to the session speakers throughout the WILG conference, I began to wonder whether the Ten Million Dollar Question wasn’t whether the national commission and its ground-breaking Report could ever recur today, but rather how the national commission was ever able to convene and accomplish what it did in the first place. Because as the day wore on, and speaker after speaker recounted the origins, operation, impact, and lessons learned from the national commission, it became all too clear that the commission and its report would never have happened at all absent a set of uniquely aligned, special circumstances.
A number of different variables powered the timing of the national commission’s emergence and the scope of its accomplishments, but the biggest driver overall was the legislative climate of the times, which provided an enriched foundation of statutory justice upon which the commission could naturally build. Peter Barth reviewed this series of legislative developments, which was ignited in 1911 by the death of 100 workers in the Triangle Shirtwaist Fire and the resulting enactment of the nation’s first workers’ compensation laws, the nation’s first industrial safety laws, and the creation of the United States Department of Labor. The additional items of legislative significance that Barth discussed included:
- the federal movement into medicine with the enactment of Medicare/Medicaid in 1965 (a dramatic breakthrough that resulted after a bloody and prolonged national struggle over the issue of whether health care should be federalized);
- the federal movement into the state-dominated area of workers’ compensation laws with the 1965 enactment of black lung legislation (an enormously symbolic occurrence for state workers’ compensation programs); and
- the federal movement into occupational health with the enactment of the 1969 Coal Mine Health and Safety Act (which occurred one year after 100 West Virginia coal miners were killed in an explosion).
These statutes set the stage for the Occupational Safety and Health Act of 1970, and OSHA’s Section 27—the frosting on the legislative cake that established the National Commission itself. John Burton told symposium attendees about a lunch he had years later with a Javitts staff member who told Burton that the passage of Section 27 was not an afterthought or something Javitts did to accommodate a constituent, but rather the product of a conscious effort that the liberal Republican considered his proudest legislative achievement.
The political climate in Washington during the early 1970s also played a critical role in the way the commission developed and operated. As Peter Barth recounted during his WILG symposium presentation, in 1972 the United States was purple, rather than being divided into clearly defined sections of red and blue. Strom Thurmond, Hubert Humphrey, and Ted Kennedy led the Democrats, Jacob Javitts and Barry Goldwater held sway over the Republicans, and both parties faced tremendous challenges arising from pressures relating to the civil rights and anti-war movements. Republicans were faced with the choice of either attempting to attract southern Democrats, or appealing to working class voters on social and economic issues, so the Nixon White House positioned itself between management and workers to draw both factions into Republican politics. Also taking root throughout the land was a growing national consensus that increased opportunity should exist for people in the areas of health care, education, and employment opportunities. John Burton put all of this into context when he later explained:
“The political environment in Washington in the early 1970s was vastly different than the current acrimonious atmosphere. The Occupational Safety and Health Act of 1970 was enacted by a vote of 308-60 in the House of Representatives, was adopted without debate on the same day by the Senate, and was signed by President Nixon within two weeks. The legislation was commonly referred to at the Williams-Steiger Act: named after a Democratic Senator from New Jersey and a Republican Congressman from Wisconsin. And although the Democrats had the majority of members in both the Senate and House, it was a Republican—Senator Jacob Javitts from New York—who was largely responsible for adding Section 27 to the OSHAct, which established the National Commission on State Workmen’s Compensation Laws. A similar scenario involving broad bi-partisan support for legislation favorable to workers—or even for a study of a law that was designed to serve both workers and employers, such as workers’ compensation—is inconceivable in the current decade.”
The commission’s report is also noteworthy because it was produced within a one-year time period, which was especially unprecedented considering the divisive issues that were playing out at a national level. But even the speedy turnaround time of the commission’s report was motivated by the politics of the day. With a schedule that called for 9 hearings around the country, and 11 meetings that could last up to 19 days, the first thing that commission members requested from Congress was an extension on the one-year deadline date that Section 27 placed on the commission’s report and recommendations. Because Javitts feared that even a one-line statutory change in Section 27 would be a political vehicle for other major changes in OSHA, Congress rejected the deadline extension request. Left with no option but timely compliance, the commission produced its report in near record time.
The nation’s political atmosphere in the early 1970s resulted in consensus politics—the magic ingredient that inspired a commission filled with Republican academics and professionals to defy anticipated expectations and produce findings and recommendations that were pert near revolutionary.
Although the national commission was deliberately stocked with Republicans, it was nevertheless able to make its socially liberal, ground-breaking recommendations in part because of cultural variables at play during 1972 that would be impossible to replicate today. Indeed, one of the components underlying the consensus that fueled the national commission may have been the absence of 21st century mobile communication devices. Professor Burton told the symposium audience how the commission’s one-year struggle to do something in the way of federal standards was eventually resolved when commission members (who would reach consensus in the morning, only to change their minds after having lunch with constituents) left Washington to sail off on a yacht, and later sequestered themselves in a former CIA safe house. Only by isolating their discussions from political turmoil was the commission able to unanimously recommend 19 essential minimum standards for state-run systems, 65 additional standards, and a federal enforcement driver.
THE STATE-BASED STATUS QUO
The need to protect that state-based nature of workers’ compensation was another factor that brought focus and commitment to the national commission and its goals. With the feds moving into a number of areas that were traditionally state-based in nature (medicine, occupational health, education, and poverty to name a few), there was considerable concern among various groups that the federal government would wipe out state workers’ comp programs and thereby threaten their livelihood. The White House had other ideas about whether it was a good idea to get rid of state workers’ compensation programs and it was no accident that the Nixon Administration appointees to the national commission were all committed to the existing state-based structure. Thus, while some say that the national commission was an important victory for workers, Professor Burton pointed out that the commission was also successful in maintaining the status quo of the state-based workers’ compensation system and opined that serious threats to a lot of people would need to exist before something comparable to the national commission could be created today.
BACK TO THE FUTURE
The general consensus among the scholars and practitioners attending the WILG’s retrospective about the national commission was that the workers’ compensation system remains inadequate and inequitable 40 years after the 1972 national commission reviewed the state of injured workers’ benefits and concluded that the system was inadequate and inequitable. Using numbers from an NCCI actuarial assessment to tell the story of the national commission and its impact, Professor Burton explained that although state workers’ compensation statutory benefits changes showed a 32% increase during 1970-1975, the figures from 1985, through the 1990s, and into the 21st century are negative numbers. But the WILG is a resilient bunch, and its members continue to fight the good fight. After an entire day of looking back on 1972 (and aided in no small part by the benefit of four decades of hindsight), symposium speakers and attendees engaged in a collaborative discussion about a collective strategy for the future.
Richard Swanson suggested a practical approach. In his view, change requires friends in Washington, and that means electing a Democratic Congress and getting the right people back on a sub-committee for workforce protection.
And even though the symposium audience had spent no small amount of time learning about the various reasons why the 1972 national commission was, well, a fluke, a vocal faction advocated for creation of another national commission. Peter Barth later explained:
“Reaching consensus was made less difficult when the dreadful state of workers’ compensation laws at that time became evident to the entire Commission. What the experience of the Commission and the Report contributed was to turn on a light to a system that had operated largely in the dark since its inception. A new commission would serve to turn on the lights again though the condition of the state systems is not the same as it was 40 years ago.”
A proposed vehicle for recreating the 1972 commission—HR623—is sitting in Congress right now. The bill has 23 sponsors, but Swanson (who admittedly prefers hanging out in D.C. talking and drinking coffee to writing papers, and had a war chest of political gossip to share) candidly admitted that enactment is doubtful at best, even with that worker-friendly Democratic majority, and suggested the alternative use of the GAO to create studies that analyze state-based systems.
Although the national commission’s consensus politics depended in no small part on the absence of cell phones and modern mobile communication devices, others referred to the technologies available in the electronic age—which empower users to share information (and combat misinformation) like never before—as bright future indicators for eradicating inequities in the workers’ compensation system. Taking a data-centric approach, these individuals talked about building an informative global perspective that would educate doctors and workers on the integrated nature of the issues at stake by creating an OSHA catalog to compare the number of WC claims to the number of reported injuries that actually take place as well as a databank for tracking the employers and insurance carriers on newly filed claims. Others mentioned the need to “find our values and speak to them.” These individuals talked about social media technologies as a vehicle that allows worker advocates to move away from raw data and put a human face on the issues. Others wanted to emphasize safety and OSHA enforcement through the imposition of fines (rather than the micro-management of benefits). And still another group took a hard line, stating bluntly that the quickest way to worker safety was to put criminal penalties on corporate leadership.
Another suggestion involved devising a strategy that would schedule hearings in all of the states with faith-based groups, trial lawyer associations, and providers (no one mentioned insurers) that would provide a forum for discussion of the issues, collate the state data from these hearings, and have a mechanism in place that would take this information to the federal level.
Professor Burton later provided the most considered (and detailed) proposed strategy for protecting the current workers’ compensation system from further degradation:
“Workers’ compensation programs for most workers are controlled by the states. In many states the laws have provided less protection to disabled workers as benefits have been reduced and rules determining which injuries and diseases are compensable have been constricted. The deleterious developments reflect several factors, including the declining influence of unions in almost all jurisdictions, the increasingly conservative legislatures in many states, and the heightened competition among states for employers resulting from the dismal economic recovery. My proposal is to improve or at least maintain current workers’ compensation programs in as many states as feasible, but to place most emphasis on reform efforts at the federal level. WILG and other organizations should help organize Congressional hearings, such as the 2010 Hearing before the House Subcommittee on Workforce Protections, which examined the increasing reliance on the American Medical Association’s Guides to the Evaluation of Permanent Impairment as well as the possible shifting of costs of work-related disability to the Social Security Disability Insurance program as a result of the deleterious developments in state workers’ compensation programs. There are other topics where the deficiencies of state workers’ compensation laws could be documented, such as the lack of coverage of occupational diseases and the dual denial doctrine, which removes some workers from workers’ compensation coverage and also prohibits them from bringing tort suits against their employers. In addition to hearings on such topics, legislation should be introduced to create a national workers’ compensation program that would replace the state laws should they continue to deteriorate. A starting point could be the Workmen’s Compensation and Rehabilitation Law, which was drafted by a distinguished committee of the Council of State Governments in the 1960s and revised in 1974 to incorporate the recommendations of the National Commission on State Workmen’s Compensation Laws. Enactment of this Model Workers’ Compensation Law by Congress is unlikely, but at least its introduction could serve as a warning to those interests who are dismantling the workers’ compensation programs in many states: if you continue to stretch the implicit social contract of state workers’ compensation programs that balances the interests of labor and management, eventually there comes a breaking point where Congress will “solve” the problem by replacing the state workers’ compensation system with a federal program.”
The panoply of suggestions that the WILG symposium group proffered for the future didn’t come close to reflecting the kind of consensus that served as a prerequisite to the findings and recommendations set out in the national commission’s report. And many of the WILG speakers who I later approached for more details about their view on the issue of whether the national commission was a fluke depicted a grim future for workers’ compensation systems. Jim Ellenberger put it most succinctly:
“In my view the Report of the NCSWCL was a fluke within a fluke. Like others, it would be absolutely impossible for me to imagine the selection of 15 (or 18) commissioners from today’s business, insurance and state agency organizations who feel strongly enough about the social and economic justice goals of workers’ compensation to put their fat necks on the line to speak and seek the truth. But even those unique and committed individuals from 1971-72 would not have the fortitude to unanimously support the 84 recommendations and 19 “essential” recommendations without the leadership and dedication of John Burton and his staff.
Most of the yokels who populate the business and insurance organizations involved in workers’ comp today are so consumed by their own greed and self-importance that they have lost all perspective of decency.”
Some might call Ellenberger biased, criticize those who hurl charges of greed and indecency while using the system for their cash cow, and suggest that practitioners consider reducing their fees as a big first step towards helping injured workers (but it is unlikely that any of them attended this particular conference).
John Lewis was a little less caustic than Ellenberger, but espoused a viewpoint that was equally grim, when he told me:
“Obviously we were fortunate to have had an extraordinary set of circumstances come into play that impacted on the establishment of the Commission, the cooperation of its members, and the influence of the Report. But even if our experiences had been normal for the times, the times they are a changing. I cannot imagine any significant employer or employer organization worried about a Federal presence in state workers’ compensation, let alone a takeover. I cannot imagine a Republican member of Congress who would agree to serve on a committee “looking into” state WC programs. And over the years I have come to realize that for pretty much everyone other than those of us who spend our lives dealing with it, workers’ compensation is small potatoes when compared to the immense social and economic problems that this country will face for many years. During my time in the fray, I tried to encourage employer and employee groups to take joint control of the WC issue, make it work for them, and avoid the warfare that came whenever one side or the other had the political advantage. Occasionally it worked, at least in the short term, but I do not see even vestiges of that approach in any of the states that I am still familiar with. At this point in time I simply cannot see this approach suddenly arising out of an otherwise completely combative political environment. We now appear to be a country where large numbers of church-going, God-fearing individuals don’t seem to care what happens to tens of millions of the less fortunate, and unless that changes, workers’ compensation and the people it fails to serve will continue to be left by the roadside.”
An undercurrent of rebellion nevertheless remains strong among the WILG worker advocates, and that force may carry the promise of increased momentum as long as dedicated fighters like Kim Bobo, Emily Spieler, and others continue to push the Sisyphean rock up the mountain. Because a fluke isn’t just a lucky accident; a fluke is also part of an anchor, or the barbed head of a harpoon. The WILG has tossed the triangular hook into the ocean, but it will take a great deal of conviction—and faith—to continue believing that the fluke can catch ground.
© Copyright 2013 LexisNexis. All rights reserved. Reprinted with permission. This article originally appeared on the LexisNexis Legal Newsroom Workers’ Compensation at www.lexisnexis.com/wc.