The discussions of COVID continue to predominate in the community of workers' compensation. Today, in a "throwback Thursday," this blog revisits a California Supreme Court decision from the early days of workers' compensation.
I was honored recently to be asked to participate in a research paper for the Sedgwick Institute. It began with an interview podcast conducted by the Institute Director, Chris Mandel. We thereafter collaborated on an extensive deep-dive into the evolution of workers' compensation generally, with a specific focus on presumptions and occupational disease. This was an invigorating opportunity to review and explore statutory foundations for this community of ours. It was also interesting to explore some of the other resources on the Sedgwick site.
The subject of presumptions is attracting widespread attention during this time of COVID. Recently in Utah Redux, I explored the 2020 legislative efforts there. Some of the complication in presumptions is deciding and defining who is within and without the special group of employees treated better than the rest. The choice of statutory words is explored in a recent Illinois effort in Interesting Word Choice, and word choice plays significantly in the 1920 California case upon which we focus. Overall, the presumption subject has evolved much this year.
It is a topic on the minds of many. I will be speaking on presumptions and COVID-19 again on August 5, 2020. I am honored to have been invited to provide an overview from the bench perspective on occupational disease and presumptions to the Workers' Compensation Claims Professionals (WCCP). The program is complimentary, but space is limited. Click the link to register.
In the course of these studies of presumptions and occupational disease, I ran across San Francisco v. Industrial Acc. Com., 183 Cal. 273 [191 P. 26] (CA 1920). This analysis is notable for several reasons.
First, it was rendered in 1920. That was pretty early. According to the California Applicants Attorney Association, workers' compensation in a voluntary form came to California in 1911. The mandatory application came in 1913. This Supreme Court analysis in 1920 regards a 1918 illness and relies upon analyses from other state courts. It is a reminder of our common law roots and the concept of stare decisis (see A Unicorn Fax (June 2020)). Courts strive to follow precedent, but in the early twentieth century, there was not a great deal of precedent on the books as yet.
The analysis also demonstrates the application of judicial interpretation of words. In the context of deciding what is or is not covered by a statutory construct such as workers' compensation, the statute is the best starting point. The Court there proceeds from statute to its state constitution. The Court's logic an explanation is illustrative, whether of judicial restraint or expansion, however, is left to the reader.
The interpretation of San Francisco clearly demonstrates the beginning of the compensability argument and determination as regards diseases of life. That is a balance whose definition and discussion continue to this day. The current Florida law was recently discussed on these pages in Florida Occupational Disease Burden (December 2019). Compensibility of such ordinary diseases of life is difficult in many American jurisdictions. Perhaps it is this difficulty that has led to the precipitous enactment of 2020 presumptions. Remember, we return time and again to the fact that workers' compensation is a socialistic construct through which government mandates a distribution of risk and cost upon industry. See, Re-Socialization of a Socialistic Construct (November 2019).
Returning to San Francisco (I spent some great afternoons of my youth in a park overlooking that bay, eating shrimp cocktail, and chowder, and soaking up the atmosphere. Those halcyon days are but a memory). But we return to the case that bears that name, rather than the city.
In 2018 "a man named Ernest F. Slattery" worked for a local hospital. He became ill with influenza. and was dead within days. The Court does not discuss the historical perspective, but the Court in 1920 was still very close to what the Centers for Disease Control describes as "the most severe pandemic in recent history." It began in the spring of 1918, and was a very serious event:
"It is estimated that about 500 million people or one-third of the world’s population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States."
Thus, the Court was interpreting California's reasonably new workers' compensation law shortly after a worldwide pandemic had begun to subside in 1919. For details on the timeline of that pandemic, see the American College of Emergency Physicians' excellent overview. Notably, COVID-19 has broad potential and is a serious threat, but has not yet reached the tragic thresholds set by the 1918 pandemic.
Mr. Slattery's spouse sought workers' compensation benefits and prevailed before the Commission. The city sought certiorari review of the Court asking that the Commission decision be reversed. The city contended that the disease was not compensable in workers' compensation and that there was no direct evidence of how Mr.Slattery actually contracted the flu. Obviously, in consideration of the numbers noted above, the 1918 flu was both widespread and serious. Thus, there were likely multiple potential exposures through which one might have contracted that disease, perhaps a similarity with the COVID-19 potentials of today?
The Court noted the city's argument that workers' compensation was intended for that "injury suffered through violence," which somewhat colorfully directs attention to the concept of an "accident." The city contended that a disease is distinct from such "violence" and therefore fell without the definitions in the law. The Court's focus, did not turn so much to the concept of "violence" or "accident," but instead "to the word 'injury' as used in article XX, section 21, of (the California) constitution" and in the 1913 California workers' compensation law.
The Court focused on that section as it had existed at the time of "Slattery's death," a reminder that in workers' compensation, the law in effect at the time of an injury usually controls, rather than laws that are enacted thereafter. This is an important reminder as the marketplace today witnesses both legislative and executive actions responding to COVID-19 in which retroactive effect is both stated and intended. Whether the courts are inclined to such retroactivity, the recent presumption proclamations seem destined to lead to court interpretation.
The San Francisco Court focuses upon the Constitution's grant that the state's legislature "may . . . create" a system of compensation that addresses "any injury incurred by the said employees in the course of their employment irrespective of the fault of either party." The Court found the use of the word "injury" to encompass more than merely that "resulting from violence." From that grant came a statute that persistently focused upon "injury" rather than "accident."
The Court turned to the Webster dictionary. It provided reference to other courts that had developed some precedent on interpreting "injury," specifically Connecticut (1917), Ohio (1916), Michigan (1916), New York, and New Jersey. These seemingly did not support the compensability of a disease such as the flu. The Court also noted other examples that did support a "broader meaning," and concluded disease was compensable; this notably included two decisions of the English House of Lords (1905)(1916) and an Indiana decision (1917). Recognizing the split of authority, the Court was persuaded the broader interpretations were more logical.
The California Court also considered the potential for concluding that a disease is actually an "accident." Its analysis supports the conclusions in the Sedgwick paper that disease compensability in America had its origin in diseases specifically connected to a "certain occupation," such as "lead poisoning." Despite the apparent connection in some contexts, the Court in 1920 noted that "as a rule, such industrial or occupational diseases are not considered as injuries by accident and in the absence of special statutory provision compensation is not allowed therefor," unless the result of some "unusual circumstances" of work.
In the end, the Court was impressed that the word "injury" was used rather than "accident. It noted that "the word 'injury' and not 'accident' was employed by the legislature throughout" the workers' compensation act, but provides no citations. It concluded that this word choice was intentional and that this is "an inclusive word"; more being suggested for coverage than merely accidents (violence). The Court found similar analysis to support its conclusions in Massachusetts, Michigan, California (1917), and Wisconsin.
Notably, the Court concluded that it was bound to follow the legislative action. There are those who argue that America's courts have evolved to frequently ignore the separation of powers thus recognized (for more on the role of branches of government, see Inconceivable! (June 2020)). It is worth noting the Court's quote that:
"It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution."
Finally, the Court turned to the actual causation in this instance. Mr. Slattery contracted a disease that millions of others also contracted. There was the apparent potential for exposure in a variety of locations and ways. In this, it seems similar to COVID-19. The Court noted that Mr. Slattery was shown to have been caring for twelve patients afflicted with the flu in his role as a hospital attendant. At the time, the flu epidemic "was raging in the city."
The factual evidence was that during the incubation period (4 days); "that so far as known he was not exposed to any cases except in the course of his employment," and that "during the two weeks preceding his illness had been working very hard and had gone directly from his home to his work and from his work to his home, and had not been out" otherwise. Thus, a logical cause was shown, and no other cause was demonstrated. However, review of Florida Occupational Disease Burden (December 2019) might suggest that such a demonstration today is perhaps insufficient?
On that demonstration of proven workplace exposure and the absence of any other exposure, the Court affirmed the trial conclusion that this disease was work-related. In doing so, the Court also reminded that its role was not to re-decide the case, nor to determine if it agreed with the Commission's conclusions. Its role was to consider whether "a reasonable man could not reach the conclusion which the commission did." The standard in appellate review is one of error, not disagreement. That an appellate body may disagree factually is not sufficient to support a reversal.
Thus, 1918 was a time of pandemic. A healthcare worker contracted what is undoubtedly an "ordinary disease of life." The trial body determined that under that state's law an "injury" rather than "accident" was the critical analysis (thus arguably, disease insinuates into workers' compensation early through word choice, whether intentional or not). The appellate court found no grounds to discount the factual conclusions of causation and interpreted the word use to support a broad and "inclusive" connotation. The evolution of workers' compensation toward disease had thus begun.
Would the outcome be different today? The analysis in many states will turn on whether COVID-19 (or other malady) is an "ordinary disease of life." The analysis will perhaps be influenced by whether the injured worker's occupation was one that presented some specific or increased risk of disease; that is perhaps more likely for a healthcare worker than for one who sits alone in an office all day? These distinctions and factual discussions are perhaps the critical element in the analysis of various workers' compensation statutes across the country.
COVID-19 is with us for at least the near term. We will all struggle with it on a personal level at least. Claims professionals, risk managers, lawyers, doctors, and judges seem destined to be faced with it professionally as well. The decisions may involve compensability, the legality of executive imposition of presumptions, the retroactive application of law changes, and more. It will be intriguing to observe in those broad contexts. However, it is also important to remember that each such example is actually about the two people for whom workers' compensation was created: the employee and employer. Let us not forget that these interesting debates all involve real people and impact real lives.
