In 1980, Presidential candidate Ronald Reagan purportedly asked "one of the most important campaign questions of all time." In a debate with incumbent President Jimmy Carter, Mr. Reagan asked generally: “Are you better off today than you were four years ago?” The Harvard-Kennedy School notes that:
"The 'better off' question has been with us ever since. Its simple common sense makes it a great way to think about elections. And yet the answers are rarely simple."
I would add that each person's answer is also likely to be very subjective. In the real world it is perhaps unlikely that everyone will perceive being better off in any competitive exchange, such as an economy in which there are inherent gives and takes.
Hold those three points in check for a moment, the "better off," the "gives and takes," and the "rarely simple."
In March 2022, I was honored to speak (briefly) at the Workers' Compensation Research Institute (WCRI) conference in Boston, see Friends, Romans, countrymen, lendme your ears (March 2022). I have, there and elsewhere, noted some people's captivation by and reverence for the Report of the (1972) National Commission on State Workmen's Compensation Laws. That was a diverse panel from the standpoint of perspectives. What was scheduled as a three-person discussion at WCRI unfortunately became somewhat one-sided as significant program time (a bit more than half) was appropriated by one perspective. I applaud the passion with which that perspective is held and was delivered that day. However, I am a firm believer that there are many perspectives on this world of ours, and a panel is, after all, a panel (if someone wants an hour of your perspective, they will invite you to present or keynote, not as a panel participant).
I was reminded of that panel more recently when the United States Department of Labor sponsored a panel discussion regarding the Panel Discusses Legacy of the 1972 Report; Effectiveness of State Systems As an aside, without explanation or even footnoting, the persistent use of "workmen's" regarding that report in various texts is troubling. Admittedly, that word is undoubtedly and indelibly in the title of the 1972 Report. However, society has moved on and "workers" today is more acceptable; our workplaces are more diverse, vibrant, and inclusive. We may acknowledge that old vernacular, and yet acknowledge it was genderist and inappropriate then and remains so now.
The panel at the United States Department of Labor was focused specifically on half of the Grand Bargain, asking "Is the Workers’ Compensation System Serving Injured Workers?” The panel included Professor John Burton, an emeritus professor at Rutgers University and the Chair of the 1972 Commission. Law professor Emily Spieler, Northwestern University School of Law was included, as was workers compensation attorney Alan Pierce. The panel was completed by "the department’s Office of Workers’ Compensation Programs Director Chris Godfrey."
I received an inquiry regarding a news story published about the panel. This essentially questioned whether this was a broad-perspective panel or was it tilted to academia and injured workers? The inquirer seems to feel a federal government effort would be balanced. I explained my perception that the initial explanation of the program was essentially about injured workers and that there did not seem to me to be any pretense or suggestion that the discussion or panel would be about the efficacy of workers' compensation systems in the broad context suggested by the caller. The caller argued that a portion of the title "Effectiveness Of State Systems" had given the impression of a broader and more balanced analysis. Everyone is entitled to their opinion. Should this have been a more diverse panel?
Coincidentally, I have been invited to attend the Tennessee Workers' Compensation Conference on August 15, 2022 in Nashville (Murfreesboro), specifically to participate in a panel discussion of the relevance and importance of the 1972 Commission Report. The program will be moderated by the Hon. Paul Sighinolfi (former executive director and Chair of the Maine Workers’ Compensation Board). Chair Sighinolfi is among a very small cadre of national thought leaders of American workers' compensation. As an aside, it is unfortunate that cadre is so small. Also at this Tennessee conference, one leader will transition to retirement. American workers' compensation is not ready to be without Abbie Hudgens, and it is hoped that despite her retirement as Administrator of the Tennessee Bureau she will persist in her presence and contribution; more on Administrator Hudgens in a future post.
Mr. Pierce will be among the panelists in Tennessee, and he is a devotee of the 1972 Report. We will be joined by Adrienne Fazio of Nashville. I am hopeful that any potential critics will note that this panel includes an attorney representing primarily injured workers (Mr. Pierce), an attorney primarily representing employers (Ms. Fazio), a judge (the adjudicatory process) and a former state administrator (Mr. Sighinolfi). While this may not present all possible perspectives, these systems are really designed for the employers and workers. It is those two constituencies that made (purportedly) the Grand Bargain in the early twentieth century. Discussing one party without consideration of the other may seem to some unbalanced, and it is hoped this is a panel of more balanced perspectives.
Having noted this balance from my perspective, I must also remind that some take more constrained views of workers' compensation. Many a speaker over the years has proclaimed that workers' compensation is "for" the injured worker or "for" the employer. These views belie the Grand Bargain, "and all that that entails." It takes, as they say, "two to tango," and likewise two to form a bargain. Unfortunately, there are perhaps some in the workers' compensation community who do not perceive the beauty of a balanced, if nuanced, quid pro quo between labor and management. The debate would be more productive if it consistently started with recognition of the Grand Bargain, the two competing interests, and the compromises that inevitably result.
Back to candidate Reagan's thought process. Perhaps a fair question in 2022, contemplating the Grand Bargain ("and all that that entails") is "Are you better off today than you were (50, 87, or 110) years ago?” In the context of the 1972 report, and the interest in its contemplation, perhaps, "Are you better off today than you were (50) years ago?” Of course, much has changed in the world since 1910 (110), 1935 (87), and 1972 (50). Perhaps that changes one's analysis, perspective, or conclusion. Nonetheless, they are all likely questions worthy of consideration.
In the context of the history of Florida workers' compensation, I have examined where the system started in 1935 (87 years ago), and compared that to 2022, amid the persistent modern lamentations and complaints of adequacy. I note the following as regards the 1935 statute, Section 5966, Fla. Statutes:
Participation in Florida workers' compensation in 1935 was voluntary for either employee or employer. No mandatory coverage. (in 2022, Florida mandates the participation of employers with four or more employees, section 440.02(16), Fla. Stat., though the challenges of independent contractors, gig workers, specific exclusions, and more complicate this). Coverage has expanded since 1935.
The Florida courts after 1935 invented, implemented, and enforced a "liberal construction in favor of employee," which was not in the statute. In deciding what the Florida law meant, the courts periodically declined to read the statute as written and instead turned to a multitude of decisions from other states such as Minnesota, Nebraska, and Oklahoma. Those, presumably, interpreted written statutes that may or may not have resembled Florida's. Huhn v. Foley Bros., 221 Minn. 279, 22 N.W.2d 3 (1946); Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956); Scruggs Bros. & Bill Garage v. State Industrial Commission, 94 Okl. 187, 221 P. 470 (1923).
The 1979 law did not create nor reinforce these judicial creations. These judicial attitudes and platitudes long predated the Commission and its recommendations. While the 2022 law mandates a "level playing field" in section 440.015 (1990, et. seq.), that constriction of the various court's "liberal construction" neither occurred in response to the 1972 report nor reflected any retreat from the Report or its recommendations. While many lament the posture in which the playing table does not today inexorably tilt to one side, the "liberal construction" was never part of the workers' compensation statute, not part of the Grand Bargain in Florida, and perhaps not pertinent to the discussion of the 1972 Report.
Medical care in 1935 did not specifically include attendant care. No medical transportation was provided in the law. That such transportation was "care" and must have been intended was inferred by the courts almost 30 years after the law was adopted. Mobley v. Jack & Son Plumbing, 170 So. 2d 41 (Fla. 1964). This was also perhaps influenced by out-of-state decisions based upon the “liberal construction” standard, see above. In 2022, medical transportation is not in the statute, but is payable pursuant to the Mobley decision. Medical care entitlement has expanded since 1935.
What was compensable? Accidents were. Emotional injury was not mentioned in the statute. Occupational Disease was not in the statute until 1945. Some of the early cases finding such disease instances compensable inferred compensability from reference to other state decisions. Alexander Orr, Jr., Inc. v. Fla. Indus. Comm'n, 176 So. 172, 172 (Fla. 1937). Compensability of heart attack was created by the Court in 1962: Victor Wine [& Liquor, Inc. v. Beasley, 141 So. 2d 581 (Fla. 1962). Compensability of aneurysm was created by the Court in 1978 Richard E. Mosca & Co. v. Mosca, 362 So. 2d 1340 (Fla. 1978). (In 2022, occupational disease is in the statute, section 440.151, Fla. Stat.). Coverage has expanded since 1935.
Repetitive trauma injuries were not mentioned in the statute and were not "accidents" or compensable until the Court inferred compensability in 1980. Festa v. Teleflex, 382 So. 2d 122. This was an inferential extension of the previously inferred occupational disease and a “long, well-established history of awarding compensation benefits” borrowed from the "liberal construction in favor of employee." The Festa case seemingly ignored long-standing precedent that had held repetitive trivial trauma not included in the statute. (In 2022, repetitive trauma is still not in the statute, but is compensable under the Court's legislation/interpretation). Coverage has expanded since 1935.
Permanent total disability was paid at 50% to 60% of AWW, depending on number of dependents. The benefits were capped at about 7 years (350 weeks) of entitlement. (In 2022, these benefits are payable at 66.67 percent of the AWW until age 75 or for life if the worker is not eligible for Social Security). Both weekly amount and potential duration of this benefit have expanded since 1935.
Death benefits were paid at 50% to 60% of AWW, depending on number of dependents. These were likewise capped at about 7 years (350 weeks) of entitlement. (In 2022, death benefits include funeral expenses up to $7,500, compensation benefits payable at 50% to 66.67% depending on number of dependents, capped at $150,000, and up to 80 semester hours of classroom education to surviving spouses). The volume of death benefits has expanded since 1935.
Temporary Total (TTD) was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 7 years (350 weeks) entitlement. (In 2022, TTD is paid at 66.67% for up to 260 weeks [about 5 years]). While the volume of potential entitlement is less [90 weeks, about 1.7 years], the amount of potential weekly benefit might be seen as greater today, while some might instead focus on the diminished potential duration.
Temporary Partial was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. (In 2022, TTD is paid at 66.67% for up to 260 weeks (about 5 years)). Though the weeks remain the same for potential entitlement, the weekly amount is notably higher today.
Permanent partial was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. These benefits were largely tied to anatomical loss or loss of function. (In 2022, these are tied to impairment rating under published guides and range from 2 weeks (for a 1% impairment) to 529 weeks (100% impairment, which is unlikely), a cap at about 10 years of potential entitlement.). This benefit would likely draw both praise and criticism regarding whether it is more or less today than in 1935. For some minor injuries, the entitlement is perhaps undeniably lower; however, the potential duration is undeniably more significant at 10 years.
In 1935, there were only four statutory presumptions in the Florida statute: (1) The claim comes within this law’s provisions; (2) that sufficient notice was given; (3) the injury was not caused by intoxication; (4) injury not caused by willful intent to injure or kill. In short, there were no presumptions for heart/lung disease, cancer, PTSD, or otherwise. (In 2022, there are focused presumptions in 112.18 for "tuberculosis, heart disease, or hypertension," in 112.1815, Fla. Stat. for certain mental injuries (PTSD), and exceptional benefits for certain cancers in 112,1816, Fla. Stat. Notably, there is a presumption of injury being non-compensable if drug use is shown, without showing of "intoxication," see (3) above). There are significantly more statutory presumptions of benefit entitlement in favor of injured workers in 2022.
There was no provision in the 1935 law to encourage the hiring/retention of individuals with impairments or disabilities. There was no state law implementing a second injury fund assessment to encourage such employment, nor any admonition similar to the Americans with Disabilities Act to preclude discrimination. In terms of protecting workers from the impacts of impairment or disability, perhaps many would agree that a worker in 2022 is better off?
So, we return to the question posed by Mr. Reagan: “Are you better off today than you were (87) years ago?” (when comp was enacted in Florida in 1935). It is suggested that benefits overall are increased for injured workers in the last 87 years. Despite some constraints passed by the elected representatives, the expansions of compensability for repetitive trauma, occupational diseases, and otherwise remain intact. In short, some might argue that Florida workers today are in fact better off under the 2022 statute than they were in 1935. However, The answer to Mr. Reagan's question is, as noted above, likely largely subjective. The statute remains involved with various "gives and takes," and history has involved others. That may be sufficient to convince the reader that this whole analysis is not simple.
Some today lament a "race to the bottom." See State Line Disputes -is Federalization the Answer (May 2016); Medical Mileage and Legislative Lessons (March 2021); No Driver Wins a Race to the Bottom (April 2018). And coverage of the recent Department of Labor panel discussion noted that some perceive that "when a benefit goes up, something is taken away." (see Observers Say States Moving Away from National Commission Recommendations, WorkCompCentral, July 12, 2022; pay site). The review of Florida benefits above does not patently demonstrate any such "takeaway," although the legislative correction of court-created perspectives and presumptions might perhaps be argued in that context, and fluctuations in benefit entitlement may be pertinent in various contexts and as to a particular worker.
Whether Florida workers or employers or both are "better off today" than in 1935 is up to the reader. However, in terms of the basket of benefits, in any particular state, perhaps a broad analysis as illustrated above would be a worthy endeavor. Are benefits in a particular state more or less generous (to workers) or burdensome (to employers) in 2022? Such a detail analysis might or might not be perceived as supporting any subjective perceptions of where workers' compensation is today in a particular jurisdiction.
Largely in response to the 1972 National Commission Report, Florida passed significant statutory reforms in 1979. Some perceived those as progressive. Others found them onerous and regrettable. Perhaps benefit entitlement has diminished since those 1979 revisions? In a future post, I will attempt a similar comparison of 1935 to the Florida amendments in 1979, for the sake of discussion of that perspective.
In the end, regardless of your perspective (subjective), participation in the debate and discussion of workers' compensation is critical. We must all be respectful of the contributions and opinions that are put on the table, and conversations need to be congenial. In that regard, we each need to yield the floor and give equal time to others, regardless of how passionate we might be about our own perspective. I hope to see you in Nashville!
