To understand the modern concept of workers’ comp coverage and the serious threat being posed by legislation like Oklahoma’s recently overturned Opt Out Act, you must first understand the origination of workers’ comp coverage in America.

History of Workers' Compensation Law

While there was likely a demand for workers’ compensation coverage prior to the Industrial Revolution, the developments made during the mid-1800’s created a labor market with new and increased risks to laborers, since the work environment was riddled with new health risks. In this new labor market laborers found themselves with injuries that were expensive and often resulted in long lasting employment limitations. A precursor to the American workers’ comp system is the 1884 worker’s compensation legislation that was enacted in Germany, which eliminated government subsidies for workers’ compensation and placed the entire burden on employers. Of this system, the German chancellor at the time, Otto Von Bismarck was quoted to have said:

“The real grievance of the worker is the insecurity of his existence; he is not sure that he will always have work, he is not sure that he will always be healthy, and he foresees that he will one day be old and unfit to work. If he falls into poverty, even if only through a prolonged illness, he is then completely helpless, left to his own devices, and society does not currently recognize any real obligation towards him beyond the usual help for the poor, even if he has been working all the time ever so faithfully and diligently. The usual help for the poor, however, leaves a lot to be desired, especially in large cities, where it is very much worse than in the country.”

Setting the Foundation for Workers' Comp in America

Over time the German law has been modified and updated. In America, the development of our modern workers’ compensation statutes was cultivated during the presidential tenure of Theodore Roosevelt. Roosevelt was passionate about workers’ compensation coverage in an era that was plagued with workplace injuries, most especially related to railway operations. To this end, Roosevelt is known for his association with legislation commonly referred to as the “Square Deal”. On April 5, 1905, Roosevelt delivered an address in which he stated:

“It has been our profound good fortune as a nation that hitherto, disregarding exceptional periods of depression and the normal and inevitable fluctuations, there has been on the whole from the beginning of our government to the present day a progressive betterment alike in the condition of the tiller of the soil and in the condition of the man who, by his manual skill and labor, supports himself and his family, and endeavors to bring up his children so that they may be at least as well off as, and, if possible, better off than, he himself has been.”

“It is all-essential to the continuance of our healthy national life that we should recognize this community of interest among our people. The welfare of each of us is dependent fundamentally upon the welfare of all of us, and therefore in public life that man is the best representative of each of us who seeks to do good to each by doing good to all; in other words, whose endeavor it is not to represent any special class and promote merely that class's selfish interests, but to represent all true and honest men of all sections and all classes and to work for their interests by working for our common country.”

“The good citizen is the man who, whatever his wealth or his poverty, strives manfully to do his duty to himself, to his family, to his neighbor, to the States; who is incapable of the baseness which manifests itself either in arrogance or in envy, but who while demanding justice for himself is no less scrupulous to do justice to others. It is because the average American citizen, rich or poor, is of just this type that we have cause for our profound faith in the future of the Republic.”

“Among ourselves we differ in many qualities of body, head, and heart; we are unequally developed, mentally as well as physically. But each of us has the right to ask that he shall be protected from wrongdoing as he does his work and carries his burden through life. No man needs sympathy because he has to work, because he has a burden to carry. Far and away the best prize that life offers is the chance to work hard at work worth doing; and this is a prize open to every man, for there can be no better worth doing than that done to keep in health and comfort and with reasonable advantages those immediately dependent upon the husband, the father, or the son.”

Risks and Threats to Injured Workers

Obviously, much has changed about our workforce and labor market since 1905, but one thing still remains:

“Far and away the best prize that life offers is the chance to work hard at work worth doing.”

These kinds of sentiments gave rise to workers’ compensation laws enacted federally and state by state. In recent years, those laws have been gradually eroded and the concept of the Opt-Out Plan arose. Most significantly laws enacted in both Oklahoma and Texas allow employers to opt out of workers’ comp coverage and develop their own workplace injury plans. The problem is that these employer-developed plans seem to cover less, exercise greater control over access to care, limit benefits, and sometimes even mandate settlements. Even more concerning is the fact that while these employer-created plans appear to violate the law, there is little or no legal remedy to those adversely impacted. However, that all seems to be changing with a recent Supreme Court Decision in Oklahoma that ruled the State’s Opt Out Act unconstitutional. As a result, Texas is the only remaining state with an active opt out law in effect.

Workers' Compensation in the State of Washington

The arguments from businesses and employers that they should have increased control over workers’ comp coverage is an argument worth hearing and a dialogue worth having. However, we must not and cannot forget what Roosevelt said 100 years ago is still true today:

“The health and wellness of our labor market is vital to the health and wellness of our economy. Laborers injured in the course of employment that are not provided with the tools and opportunity to recover and return to gainful employment become a burden to themselves and society at large.”

To this end, the State of Washington should be commended for the programs established by the Washington State Department of Labor and Industries, which were recently recognized internationally for statistical successfulness in returning injured workers to work. As an attorney representing injured workers in Washington State, I know there is still work to be done to improve our system, but it feels great to be in a state with such successful and positive workers’ compensation legislation in effect.