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This year marks the 100th anniversary of the first enactment of a state workers' compensation plan that survived a challenge before a state supreme court. From that era, I am sending you this somber postcard.

Legislators acted and judges finally concurred because society could no longer stand the horror of worker deaths and the destitution of households. The fatality rate at the time, if transposed to today's population, would exceed 300,000 deaths a year. Our rate was twice as high as England's.

In one year alone, Eastman counted 536 work fatalities in the Pittsburgh area. As an indication of the vacuity of public oversight, the state of Pennsylvania reported for that year only 295 work fatalities for the entire state. Eastman puzzled out an estimate of 5,000 new serious injuries, which created over time a "little city of cripples." Over half of the work accident victims were foreign born.

Eastman challenged the conventional notion that 95 percent of work accidents were due to carelessness. The tort system determined the employer's obligations for death or injury benefits based on finding of fault. Even the prudent worker or his or her survivors could be shut out of benefits. Courts held that the worker assumed the risk for the "ordinary" dangers of employment. The worker assumed the risk of "extraordinary" dangers if he or she knew about them, or should reasonably have known about them, yet continued to work in spite of them. If harmed by the actions of a fellow worker, the worker had no standing to sue the employer.

A 17-year-old girl working in a laundry called her supervisor's attention to a loose board at her workstation, and went on working. The board later sprung up, driving her hands in machinery, which crushed them. She was deemed by the court to have assumed the risk of accident.

For 50 percent of work fatalities and injuries, the worker or survivors received no money from the employer; and 17 percent of fatalities resulted in a death benefit of at least $500, which at the time roughly approximated two years' earned wages.

Many workers took out accident policies from mutual insurance companies, which paid about six months of injury benefits. Some employers had created relief funds, financed largely by employee contributions and used by employers to minimize their liability. Employers made voluntary payments usually only for hospital care. In Pittsburgh, Carnegie Steel alone had a disability pension program, funded by a personal gift from financier Andrew Carnegie.

Eastman assessed this economic carnage by comparing it with the "laboratory" of German, French and English systems of workers' comp that by then had been in existence for decades. She relied less on legal argument and more on sociological reasoning to find her cure, a law "making every serious accident a direct and unmistakable expense of business," and a law that would reset "the grip of economic motives" to ensure that employers protected their workers.

Contrasting the plight of the injured worker or survivors to other misfortunes in life, Eastman wrote that a work accident caused not only a hardship, but a hardship that was an outcome of injustice. Her vision animates the system we work in today, as I have long considered workers' comp to be at its core an unending conversation within society about fairness.

PETER ROUSMANIERE is an expert on the workers' compensation industry.

February 3, 2011

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