There are times when a headline catches attention. In early February 2019 this one caught mine Workers scrambled to pull a man from a vat of sulfuric acid. Two main points in this story are worthy of discussion. First is the reminder that workers' compensation does not provide compensation for pain and suffering, despite the probability that most or all injuries involve some degree of pain. Second, there is a marked disparity among jurisdictions regarding the volume of indemnity benefits potentially due from a workplace death, and those death benefits may be of significantly less duration than benefits for disability.
This story reported that a 54-year-old, Daniel Hill, died after falling "into a vat." He "was fully submerged in the 10 percent to 12 percent sulfuric acid solution," as his "co-workers worked desperately to pull him" out. The solution was also heated to "160 degrees," and some co-workers burned their hands in the process of removing him.
The co-workers put Mr. Hill into a "safety shower," and emergency personnel arrived to treat and transport him to the hospital. The local Fire Chief reported that Mr. Hill was "walking and talking" when emergency responders arrived. But, he died about 11 hours later, secondary to "pretty extreme burns." The news reports that Mr. Hill is survived by a wife, children, and grandchildren.
The employer is in the process of a "comprehensive investigation." It is also "cooperating fully with the Michigan Occupational Health and Safety Administration investigation" (though the article also uses the acronym "MIOSHA," suggesting it is "safety and health" instead?). A statement from MIOSHA said that "this type of investigation may take several weeks or months to complete." The story notes multiple prior safety issues at the employer for which fines were imposed.
The implications for this event from a workers' compensation perspective are worthy of discussion in both a micro (this case) and macro sense. The first consideration is what compensation will be paid in the event of a workplace death.
Michigan provides up to $6,000 for funeral expenses for a work-related death. Mich. Comp. Laws Ann. § 418.345. There is also an indemnity benefit payable "to the dependents of the employee who were wholly dependent upon the employee's earnings for support." That is "80% of the employee's after-tax average weekly wage," (which may be capped by a statutory maximum) "for a period of 500 weeks from the date of death." That is almost 10 years (520 weeks). Those benefits may continue even after that 500 weeks for a dependent who is "less than 21 years of age." There is also a process for payment to those "only partially dependent" for support. Mich. Comp. Laws Ann. § 418.321.
Michigan lists various individuals who are "conclusively presumed" to be dependent upon the employee. This includes a child of the employee, under 16, who is living with the employee when death occurs. It also includes children under 16 who do not live with the employee but are children "by a former spouse" or "who has been deserted by" the employee. If there is someone "wholly dependent," that person (or persons) is/are entitled to all of the death benefits, and if more than one then the benefits are shared equally. If there is no one "wholly dependent, then the benefits are paid to anyone "partially dependent." Mich. Comp. Laws Ann. § 418.331.
This analysis and structure is not uncommon. Florida similarly provides for workplace death in Section 440.16, Fla. Stat. This provides a benefit for funeral expenses and for indemnity payments to dependents. Some would argue perhaps that the division of those benefits among a group of dependents is more complex under Florida law, but it is consistent in that there is a statutory division set forth. In Florida, there is no distinction between the "wholly" or "partially" dependent though.
In a macro sense, one of the striking things about workers' compensation death benefits is the tendency for states to limit entitlement to them. This may be based upon dependency or even relationship. See, Ideological Shift (June 2015), and Marriage, the Law, and Workers' Compensation (November 2014). In various states, there are requirements that must be met in order to prove entitlement to death benefits. And, sometimes there is even dispute regarding how a death occurred. In many cases, the circumstances of death are less than clear. In the absence of witnesses, the causation may be a challenging hurdle to overcome. As an example, how did Mr. Hill come to be in the acid vat?
It is notable that workers' compensation is a statutory substitute for tort liability. The benefits provided by workers' compensation replace damages that might be due in a civil lawsuit against an employer. The employers and workers have each gained through this statutory contract, which has been described as a "grand bargain." For example, employers have gained immunity from civil lawsuits, but have lost the ability to avoid payment due to lack of fault. Similarly, employees have gained a more certain and rapid recovery for a greater spectrum of injury (the fault is largely irrelevant), but the kinds and amount of benefits are more limited. There are more examples, but these illustrate the give and take that is the "grand bargain."
That exchange came to mind when reading the Michigan story. Mr. Hill was burned over 100% of his body. Notably, burns can be characterized in degrees. Very Well Health provides a good overview of how burns are characterized as well as the risks associated with first, second, and third-degree burns. The news reports are not clear regarding what degree of burns Mr. Hill suffered, but they were sufficiently serious to result in death.
It is possible that his burns were related to both chemicals and temperature. The sulfuric acid was diluted (10%-12%). It was also heated to about 160 degrees. The boiling point of water is just over 200 degrees. And, a brief exposure to boiling water can result in first or second-degree burns or "scalding." The government recommends you set your water heater thermostat no higher than 120 degrees to prevent scalding. Thus, Mr. Hill was in liquid that was hot enough to burn.
It is possible that his burns were related to both chemicals and temperature. The sulfuric acid was diluted (10%-12%). It was also heated to about 160 degrees. The boiling point of water is just over 200 degrees. And, a brief exposure to boiling water can result in first or second-degree burns or "scalding." The government recommends you set your water heater thermostat no higher than 120 degrees to prevent scalding. Thus, Mr. Hill was in liquid that was hot enough to burn.
Furthermore, sulfuric acid is capable of causing both "chemical and thermal burns." The Material Safety Data Sheet Online describes that chemical burning damages the skin, and that secondary thermal burning can then result through dehydration. There are also dire warnings about the potential harm from eye contact, and from internal organ damage if it is ingested.
It is therefore likely that Mr. Hill was in a great deal of pain following his rescue. His coworkers responded just as the experts recommend, with immediate "flush (of) the affected area gently with lukewarm water for at least 30 uninterrupted minutes." It is certainly likely that first responders or emergency physician professionals thereafter provided him with pain medication. But, Mr. Hill most certainly suffered a painful experience. Workers' compensation provides no compensation for what in tort situations is referred to as "pain and suffering."
Mr. Hill had a spouse, children, and grandchildren. Whether some or all of those were "wholly dependent" or not will be for the Michigan Magistrate to determine. In the event that none was "wholly," then there will be an analysis of whether any were "partially dependent." Determining who is entitled to death benefits can be fact-intensive and time-consuming. And, in a macro sense, it is certainly possible that an employee might suffer a work-related death and have no dependents, but many loved ones nonetheless.
The median household income in Michigan in 2017 (the last year for which there are figures available) was $54,909. That would equate to an average weekly wage (divided by 52) of $1,055.94. Assuming that for the purpose of a mathematical example, The dependents of Mr. Hill will likely receive about $844.75 (80%) per week for 500 weeks, a potential total of $422,376.90 over the next almost 10 years.
But, in Florida, that indemnity total would be different. Section 440.16, Fla. Stat. includes a statutory cap that Michigan's statute does not. Florida law provides that the indemnity benefits for death "shall not exceed $150,000." Of course, the statutory delineations and definitions vary from jurisdiction to jurisdiction. However, it is not uncommon for death benefits to be more restricted than disability benefits.
It is possible that any disability from a work injury may last for years. There are serious work injuries that result in total disability, and various workers' compensation laws strive to replace income in those situations. For disability that is permanent in nature and total in character, statutes might provide for indemnity payment for as long as a worker lives, or until the worker reaches some age threshold, such as a retirement age. Regardless, it is likely that those disability limits will be more generous than either Michigan's 500 weeks or Florida's $150,000.
There are those who criticize this mathematical outcome. They argue that the most permanent of injuries, death, should not be less compensated than other injuries. There is also criticism of the "dependent" analysis that is common in workers' compensation statutes. They find incongruity in the potential that a worker might have no dependents and thus there would be no indemnity due to the worker's loved ones. They argue that death benefits should operate more like a life insurance policy in which death results in a sum-certain payment of some amount. The advocates of this more certain payment see an employee designating a beneficiary rather than a legal determination of dependency.
These are interesting discussions and arguments. Regardless of perspective, it is probable that many or most in the workers' compensation community can find legal provisions with which she or he disagrees. When the National Conversation occurred, one of the main topics of interest was benefit adequacy (November 2017). As the workers' compensation community debates system sufficiency and benefit adequacy, death benefits are often a subject of conversation. Mr. Hill's accident is a reminder of those points. In March, the Workers' Compensation Hot Seat will address benefit sufficiency in a broad context.
