Despite protestations to the contrary, workers’ compensation has everything to do with “fault.”

Michael C. Duff

It is just not the cabined, microcosmic fault we think of as “tort.” If workers work, workers will be harmed and killed. We choose not to ascribe the harm caused (assuming it was unintentional) to individual employing actors. But because most harm that occurs in the workplace is macrocosmically foreseeable, ideas of fault are unavoidable.

And, indeed, were it not for the growing “specter” of tort (or proliferating employer liability laws) in Europe, the British Commonwealth and the United States, brought on by the industrial revolution at the end of the 19th and beginning of the 20th centuries, workers’ compensation as we know it would never have been implemented.

So workers’ compensation very directly stands in the shoes of tort, and it is this relationship that renders it more than a merely discretionary “welfare” benefit that may without real legal controversy be provided or taken away for any legislative justification a court might deem “rational.” (I am, of course, referring to the ideal system).

But the preceding paragraph presumes that tort itself may not be swept away for any formally rational legislative reasons — as I believe the early 20th century American workers’ compensation architects and courts assumed. After all, if the legislature has the authority (bounded only by a sweetheart “rational basis” review by courts) to reduce or eliminate tort, why could it not substitute the sixth edition of the AMA Guides for the fourth?

What was (or is) the constitutional theory that would prevent steep reductions in workers’ compensation benefits? At the heart of the sixth edition controversy is the question of legislative supremacy. May the legislature do anything it wishes?

As a quiet 2018 implicitly revealed, there are really only a handful of constitutional theories that may presently be deployed in an attempt to scrutinize legislative power modifying workers’ compensation statutes. (The year of the constitutional challenge, in other words, required more theories).

Federal theories are generally unavailable. Fourteenth Amendment equal protection and due process challenges almost never succeed. State constitutions offer more possibilities under state equal protection, due process, right to remedy, open courts, right to trial, and — in Oklahoma at least — “special law” theories.

But state analogues of the federal Equal Protection and Due Process clauses tend to be similarly cramped: Unless a fundamental right or suspect classification is involved, judicial review amounts to a plaintiff attempting to show that a workers’ compensation law is both hypothetically and, in fact, irrational. As I have mentioned elsewhere, the Florida and Kansas constitutions contain quirks allowing for legal attacks unavailable most places in the country.

But ultimately, the “quid pro quo” in the breach is a description in search of a constitutional remedy. Some of these vicissitudes derive from the hybrid nature of workers’ compensation: It is both a bane to workers who clearly would have had a meritorious tort claim at the time of establishment of the quid pro quo (beginning in about 1911), and a boon to workers who would not have had a meritorious claim at that time. For this reason, state legislatures get away with treating workers’ compensation like discretionary “welfare” benefits, which they are not.

We comfortably (and somewhat mindlessly) consign judicial review of workers’ compensation statutes to lowly rational basis review unless a legislature seriously entertains a scheme that threatens to completely cut off rights to remedies for injury (think opt-out, compulsory arbitration, occupational disease limitations periods, categorical exclusions of entire classes of claimants).

At those moments of crisis, we will tiptoe in the direction of serious discussion of the permissible lower boundaries of workers’ compensation benefits. But the moment passes, and so do we.

My blue collar background and bias makes me cringe at the notion that constitutional protection of life and limb was ever meant by the founders to be so whimsical. Property is important, and so is my right arm. Politics can make strange bedfellows, and I find myself more and more influenced by “Lockean proviso” objections of Second Amendment scholars.

I accept that a precondition of agreement to join civil society is a guaranty of personal security. I am insecure when an intruder enters my home. And I am insecure in a world in which people doing dangerous things know in advance that they can harm me for very little cost.

I’ll be writing more in upcoming months about the unenumerated rights that I think were being hinted at (if not quite identified) in the seminal 1917 workers’ compensation case, New York Cent. R. Co. v. White:

It perhaps may be doubted whether the state could abolish all rights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No such question is here presented, and we intimate no opinion upon it.

Why might it be doubted? I am not sure “due process” or “equal protection” can answer the question. But something will. We continue to parse this Zen-like utterance, this question the court raised, but declined to answer. 

White’s doubt lives on. And regardless of the putative increased safety of American workplaces, nothing endures but change — and fundamental questions surrounding the nature of the social compact.

Back to my grading.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.