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Published online by Cambridge University Press: 24 February 2021
The workers’ compensation systems of several states have been expanded in recent years to include injuries and diseases caused by cumulative injury and occupational stress. This expansion has placed a financial burden on the respective systems, on employers, and on consumers, who ultimately must pay the cost of claims through higher priced products or services. This expansion may not be justified from a social perspective, however; extant medical and sociological evidence is not conclusive as to whether occupational-stress injuries or diseases—such as coronary heart disease, hypertension, stroke, and neuropsychiatric illness—are the direct result of stressful work environments. Using the California workers” compensation system as a model, the authors submit that the underlying premises of liability governing the expanded systems should be reassessed based (1) on economic factors, specifically, the increasing costs of workers’ compensation; (2) on the capacity of the system to process an ever-increasing number of claims; and (3) on the principle on which workers’ compensation systems were established, that of equity between the employer and the employee.
On the basis of these three factors, the authors evaluate three legislative approaches to restructuring the expanded system: presumption of compensability, apportionment of liability, and threshold of compensability. The first recognizes that although certain health problems are related to the workplace, the degree of causation is difficult to prove; under this approach, therefore, causation is presumed, and injury compensated, for all diseases and injuries that the system defines as work-related. The second holds that where a causal relationship between the work and the injury can be proved, the employer nevertheless should be responsible only for that portion of the disability actually caused by the workplace. The third directs that the injured employee be compensated only when a direct causal link between the job and the injury or disease can be proved. The authors recommend that legislators implement this third alternative. For one reason, it is feasible economically; for a second, it would not burden the system or increase litigation; for a third, it is equitable to both employees and employers.
1 Swezey, , Workers’ Compensation Law, in OCCUPATIONAL HEALTH LAW 2-1 (LaDou, J. ed.) (to be published, New York: Marcel Dekker, Inc., Sept. 1980).Google Scholar
2 Id.
3 Id.
4 Id.
5 Id. “Cumulative injury” is generally descriptive of musculoskeletal manifestations of disability, while “cumulative stress” is descriptive of organic manifestations of disability. Both terms, however, describe an evolutionary development of disability rather than a disability arising from a specific traumatic event.
6 See notes 39-62 infra and accompanying text.
7 See notes 65-98 infra and accompanying text.
8 Id.
9 Under this approach, a court presumes that the injury or disease in question is compensable. See notes 103-22 infra and accompanying text.
10 A court using this approach apportions disability between successive traumatic injuries, between successive exposure to occupational disease, between industrial and nonindustrial factors, and between pre-existing disease and aggravation. See notes 123-28 infra and accompanying text.
11 This approach requires that a court find a direct causal nexus between the work-place and the injury or disease. See note 129 infra and accompanying text.
12 Swezey, supra note 1, at 2-1.
13 CAL. LAB. CODE §3208.1 (West Supp. 1980).
14 E.g., Ark., Idaho, Ind., Kan., Md., Mich., Miss., N.C., N.Y., S.D. [1976] 1 LARSON's WORKMEN's COMPENSATION LAW (Matthew Bender) § 39.10.
15 See note 12 supra.
16 [1978] 1 LARSON's WORKMEN's COMPENSATION LAW (Matthew Bender) § 4.50.
17 Id. at § 2.10.
18 2 W. HANNA, CALIFORNIA LAW OF EMPLOYEE INJURIES AND WORKMEN's COMPENSATION §11.01 (2d ed. 1979).
19 CAL. LAB. CODE § 3208.1 was added in 1968.
20 Anderson v. Healy Tibbitts Construction Co., 6 I.A.C. (Industrial Accident Comm'n) 228 (1920); Grigsby v. Shell Oil Co., 7 I.A.C. 187 (1920).
21 Grigsby v. Shell Oil Co., 7 I.A.C. 187 (1920).
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 20 I.A.C. 42 (1934).
28 28 Cal. 2d 379, 170 P.2d 10 (1946).
29 175 Cal. App. 2d 592, 346 P.2d 545 (1959).
30 id. at 595, 346 P.2d at 547.
31 231 Cal. App. 2d 111, 41 Cal. Rptr. 628 (1964).
32 41 Cal. Rptr. at 630.
33 CAL. LAB. CODE § 3208.1 (West 1971 & Supp. 1980).
34 Id.
35 See notes 38-62 infra and accompanying text.
36 CAL. LAB. CODE § 5412 (West 1971 & Supp. 1980).
37 CAL. LAB. CODE § 3208.2 (West 1971).
38 CAL.LAB. CODE § 5500.5 (West 1971 & Supp. 1980).
39 CALIFORNIA WORKERS’ COMPENSATION INSTITUTE, CUMULATIVE INJURY IN CALIFORNIA: A REPORT TO THE INDUSTRY 1 (1977) [hereinafter cited as 1977 WORKERS’ COMPENSATION REPORT].
40 Id.
41 Id. The following tables indicate the loss experience of California's two largest insurance carriers:
I. State Compensation Insurance Fund, California Cumulative Injury Losses 1970-78 (In Millions of Dollars)
State Compensation Insurance Fund, internal data (Sept. 10, 1979) (unpublished report).
II. Industrial Indemnity Company, California Cumulative Injury Losses 1970-78 (In Millions of Dollars)
Industrial Indemnity Co., internal industry information (Sept. 10, 1978) (unpublished.report).
42 CALIFORNIA WORKERS’ COMPENSATION INSTITUTE, CUMULATIVE INJURY IN CALIFORNIA: THE CONTINUING DILEMMA 8 (1978) [hereinafter cited as 1978 WORKERS' COMPENSATION REPORT].
43 The following table demonstrates the percentage of total claims in 1978 based on given injuries:
1978 WORKERS' COMPENSATION REPORT, supra note 41, at 9.
44 The following table demonstrates workers' compensation awards for injury in 1978:
1978 WORKERS' COMPENSATION REPORT, supra note 41, at 9.
45 Id.
46 Id.
47 The following table indicates the claimant's age at injury:
1978 WORKERS' COMPENSATION REPORT, supra note 41, at 8.
48 1978 WORKERS' COMPENSATION REPORT, supra note 41, at 7.
49 Id. at 8.
50 Id.
51 Id. Average Litigation Expense Per Employee During 1978:
1978 WORKERS' COMPENSATION REPORT, supra note 41, at 11.
52 Computation by author from data in 1978 WORKERS’ COMPENSATION REPORT, supra note 41, at 5-11.
53 Large employers must provide unemployment benefits, unemployment disability benefits, social security, private medical and wage loss benefits, and life insurance packages under the terms of most labor union contracts.
54 See, e.g., CAL. LABOR CODE § 3200 (West 1971) (workers’ compensation); CAL. INS. CODE §§ 675, 976 (West 1972) (unemployment benefits).
55 One such manufacturer of filter equipment, Velcon Filters, unable to cope with the high costs of workers’ compensation in California, recently moved its plants to North Carolina, Alabama, and Texas, where cumulative injury has not yet become a problem. Personal communication from Velcon's President, L.G. Taylor (Sept 15, 1979). Similarly, a major tire manufacturer with 2,500 employees closed down its plants in Los Angeles after 46 years of operation. It was the third tire company to close down a California plant in recent years. The reason given was that the high cost of workers’ compensation in California made the plant uncompetitive with factories located in other states. The plant manager stated: “Workers’ comp here is so liberal that it is becoming an unmanageable burden.” The company also was concerned because many compensation payments were being made to employees who were retiring. Personal communication from staff member (Dec. 10, 1979).
56 Experience of co-author as lobbyist with Calif. legislature, 1977-80.
57 5 U.S.C.A. §§ 8101-93 (West 1976 & Supp. II 1978).
58 COMPTROLLER GENERAL OF U.S., REPORT TO CONGRESS, H.R. DOC. No. 78-119, at 1 (Sept. 28, 1978).
59 Id.
60 Id.
61 Id. at 11.
62 Id. at 8.
63 LaDou, The Facts of Executive Health, 5 EXECUTIVE 8 (1979) [hereinafter cited as LaDou I].
64 Id.
65 Kasl, Epidemiological Contributions to the Study of Work Stress, in STRESS AT WORK 12 (C. Cooper & R. Payne eds. 1978) (emphasis in original).
66 Id. at 13.
67 McMichael, Personality, Behavioral and Situational Modifiers of Work Stressors, in STRESS AT WORK 127 (C. Cooper & R. Payne eds. 1978). See also kasl, supra, note 65, at 3.
68 An individual's degree of motivation, for example, is significant: a highly motivated person copes with stress more effectively than does a less motivated person. In addition, the individual's problem-solving capability, the extent to which the individual's capabilities fluctuate, and the degree to which the individual has insight into his or her own motivations and weaknesses affect the ability to cope with stress. McMichael, supra note 67, at 127.
69 The second aspect of this research has focused on determining the relationship between various psychometric measures and stress-related diseases. Investigators working in this direction have primarily used the Minnesota Multiphasic Personality Inventory (MMPI) or the Personality Flexibility Score (16PF). Kasl, supra note 65, at 33. See also McMichael, supra note 67, at 136.
70 See Kasl, supra note 65, at 22; McMichael, supra note 67, at 134; Cooper & Marshall, Sources of Managerial and White Collar Stress, in STRESS AT WORK 98 (C. Cooper & R. Payne eds. 1978).
71 Sales, , Organizational Role as a Risk Factor in Coronary Disease, 14 ADVANCED SCI. Q. 325(1969).Google Scholar
72 House, , Occupational Stress and Coronary Heart Disease: a Review and Theoretical Integration, 15 J. HEALTH & Soc. BEHAV. 12 (1972).CrossRefGoogle Scholar
73 See LaDou, , Occupational'Stress, in DEVELOPMENTS IN OCCUPATIONAL MEDICINE (Zenz, C. ed.) (to be published, Chicago: Yearbook Medical Publishers, July 1980)Google Scholar [hereinafter cited as LaDou II]; see also Kasl, supra note 65.
74 Cooper, & Marshall, , Occupational Sources of Stress: A Review of the Literature Relating to Coronary Heart Disease and Mental Ill Health, 49 J. Occ. MED. 11 (1976)Google Scholar; LaDou II, supra note 73.
75 Borhani, Magnitude of the. Problem of Cardiovascular-Renal Disease, in CHRONIC DISEASE AND PUBLIC HEALTH (A. Lilienfield & A. Gifford eds. 1966).
76 Id.
77 In one study of 4,000 industrial workers in Berlin, 150 with angina pectoris evidenced stress from the pressures of , assembly-line work. D. GLASS, BEHAVIOR PATTERNS, STRESS, AND CORONARY DISEASE 177 (1977). In another, involving young, female invoicing clerks subjected to a heavy workload, excretion of adrenalin and noradrenalin increased by 40 and 27 percent respectively. Kritsikis, , Heinemann, & Eitner, , Die Angina Pectoris im Aspekt ihrer Korrelation mit biologischer Disposition, psychologischen und soziologischen Einflussfaktoren, 23 DEUTSCH GESUNDHEIT 1878, 1878-85 (1968).Google Scholar See also Finn, , Hickel, & O'Doherty, , The Psychological Profiles of Male and Female Patients with CHD [Coronary Heart Disease], 2 IRISH J. MED. SCI. 339, 339-41 (1969)CrossRefGoogle Scholar; M. FRIEDMAN, PATHOGENESIS OF CORONARY ARTERY DISEASE 75 (1969); House, supra, note 72, at 12; and Froberg, Karlsson, Levi & Lidberg, Physiological and Biochemical Stress Reactions Induced by Psychosocial Stimuli, in SOCIETY, STRESS AND CORONARY DISEASE (Levi ed. 1971).
78 Kasl, supra note 65, at 16.
79 One study of 3,400 men conducted over a two and one-half year period showed that Type A men between ages 39 and 49 had 6.5 times the incidence of coronary heart disease as did their Type B counterparts. Rosenman, , Brand, , Jenkins, , Friedman, , Strauss, & Wurm, , Coronary Heart Disease in the Western Collaborative Group: Final Follow-up Experience of 8½ Years, 233 J.A.M.A. 872, 872 (1975).CrossRefGoogle Scholar See also Brand, , Rosenman, , Shaltz, & Friedman, , Multi-variate Prediction of Coronary Heart Disease in the Western Collaborative Group Study Compared to the Findings of the Framingham Study, 53 CIR. 348 (1976).Google Scholar
80 Cooper & Marshall, supra note 74, at 93.
81 Kasl, supra note 65, at 21.
82 Kasl, supra note 65, at 15.
83 For example, investigators found a high incidence of hypertension among telephone operators in a large exchange who had to complete many transactions in a short period of time. Mjasnikov, Discussion in WHO, PROC. JOINT WHO-CZECH CARDIOL. SOC'Y SYMP.: PATHOGEN ESSENTIAL HYPERTENSION (1961). A comparison of the medical histories of 4,325 journeyman air traffic controllers and 8,435 second-class airmen showed that the air traffic controllers had four times the incidence of hypertension and six times the number of new hypertension cases as the airmen. Cobb, & Rose, , Hypertension, Peptic Ulcer, and Diabetes in Air Traffic Controllers, 224 J.A.M.A. 489 (1973).CrossRefGoogle Scholar
84 F. Dituri, Presentation before the California Medical Association Annual Session, San Francisco, California (1977) (unpublished report).
85 Susser, , Causes of Peptic Ulcer: A Selective Epidemiologic Review, 20 J. CHRON. DISEASE 435, 435-56 (1967).CrossRefGoogle Scholar
86 Cobb & Rose, supra note 84, at 489.
87 Brady, , Ulcers in Executive Monkeys, 199 SCIEN. AMER. 95, 95-98 (1958).CrossRefGoogle Scholar
88 LaDou I, supra note 64, at 95.
89 Wan, & Wright, , Occupational Differentials in Chronic Disability, 15 J. Occ. MED. 493, 493-98 (1973).Google Scholar
90 Brodsky, , Long-term Work Stress in Teachers and Prison Guards, 19 J. Occ. MED. 133, 133-38 (1977).CrossRefGoogle Scholar
91 Kahn, French & Quinn, Role Stress: A Framework for Analysis, in MENTAL HEALTH AND WORK ORGANIZATIONS (A. McLean ed. 1970).
92 Id. at 9.
93 LaDou I, supra note 63.
94 Special Task Force to the Secretary of HEW, Work and Health, in WORK IN AMERICA 76, 87 (J. O'Toole ed. 1973) [hereinafter cited as Work and Health].
95 Id. at 82.
96 Id. at 85.
97 A study of a United Auto Workers local of a plant employing 3,400 persons showed that 15 percent, of the workers probably were addicted to heroin. Report by Special Action Office for Drug Abuse Prevention, Executive Office of the President (1972) (unpublished study). Similarly, a 1970 survey to determine the level of drug abuse in New York industry resulted in some startling conclusions. (1) Marijuana was smoked by 12.1 percent of all employed workers, with 4 percent being regular users. Of the latter, 25 percent reported that they smoked marijuana on the job. Sales workers accounted for the highest proportion of both regular use and use while at work. (2) LSD and methedrine were used by more than 2 percent of all employed workers. (3) Heroin was used by 1.3 percent of all employed workers, with 0.5 percent being regular users, more than one third of whom reported using heroin while on the job. Sales workers were again the most frequent users. N.Y. NARCOTICS CONTROL COMM'N, DIFFERENTIAL DRUG USE WITHIN THE N.Y. STATE LABOR FORCE (1971).
98 Work and Health, supra note 95, at 86.
99 Id.
100 Id.
101 Id.
102 Kasl, supra note 65, at 35.
103 [1978] 13 LARSON's WORKMEN's COMPENSATION LAW (Matthew Bender) § 41.72.
104 CAL. LAB. CODE § 3212-3213 (West 1971 & Supp. 1980).
105 Schave v. Dep't of State Police, 58 Mich. App. 178, 227 N.W.2d 278 (1975).
106 City of Oak Ridge v. Campbell, 511 S.W.2d 686 (Tenn. 1974).
107 Schave v. Dep't of State Police, 58 Mich. App. 178, 227 N.W.2d 278 (1975).
108 Sperbeck v. Dep't of Indus., Labor & Human Relations, 46 Wis. 2d 282, 174 N.W.2d 546 (1970).
109 Vincent v. New Orleans, 326 S.2d 401 (La. App. 1976).
110 New Hampshire Ins. Co. v. Duvall, 114 N.H. 719, 337 A.2d 533 (1975).
111 CAL. LAB. CODE § 3212-3213 (West 1971 & Supp. 1980).
112 Havel v. I.A.C., 316 P.2d 680 (1957).
113 CAL. LAB. CODE § 3212-3212.7 (West 1976).
114 Ferris v. I.A.C., 237 Cal. App. 2d 427, 46 Cal. Rptr. 913 (1965).
115 Turner v. Workmen's Compensation App. Bd., 258 Cal. App. 2d 442, 65 Cal. Rptr. 825 (1968).
116 Id.
117 Baker v. Workmen's Compensation App. Bd., 18 Cal. App. 3d 852, 96 Cal. Rptr. 279 (1971).
118 City & County of San Francisco v. Workmen's Compensation App. Bd., 22 Cal. 3d 103, 583 P.2d 151, 148 Cal. Rptr. 626 (1978).
119 45 Cal. App. 3d 162, 119 Cal. Rptr. 120 (1975).
120 The statutory presumption has been strongly criticized, and a number of municipal governments in California have initiated steps to repeal or to modify the statute.
121 The California Fund is the statutory insurer of municipalities, unless the municipalities are legally uninsured. CAL. INS. CODE § 11870 (West 1972).
122 Personal communication from member of staff (July 30, 1979).
123 w. HANNA, CALIFORNIA LAW OF EMPLOYEE INJURIES AND WORKMEN's COMPENSATION § 14.04 (2) (2d ed. 1979).
124 Id.
125 Id.
126 Id. The California Labor Code deals with the issue as follows: “In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.” CAL; LAB. CODE § 4663 (West 1971).
127 [1978] 2 LARSON's WORKMEN's COMPENSATION LAW (Matthew Bender) §59.20.
128 For example, there is little doubt about the symbiotic relationship between asbestos and cigarette smoking. This relationship is noted in U.S. DEP'T OF HEALTH, EDUC, & WELFARE, A GUIDE TO THE WORK-RELATEDNESS OF DISEASE 23, 23, DHEW PUB. NO. (NIOSH) 77-123 (1976):
Epidemiologic studies and animal studies have shown that increased exposure to any of the types of asbestos increases the risk of lung cancer (bronchial carcinoma). This carcinoma appears to be related to the degree of asbestos, the type of asbestos and cigarette smoking. It is also significant that cigarette smoking in men and women greatly increases the risk of lung cancer in those who are exposed to asbestos. Smoking is a factor that should be considered when determining whether lung cancer is caused wholly or in part by an occupational exposure to asbestos.
This relationship has been recognized in California. For example, in Wyman v. Workmen's Compensation App. Bd., 43 Calif. Compensation Cases 840 (1978), the Board allowed apportionment of 75 percent of an employee's pulmonary disability to nonindustrial causes when one of the employee's treating physicians and the examining physician both reported that 75 percent of the employee's lung disability resulted from a 34-year history of smoking and would have occurred even without his exposure to dust and fumes.
129 The concept of a threshold of compensability is similar to the requirement that the claimant be compensated only if the cause of the injury was accidental or if the effect was the unexpected result of routine performance of the claimant's duties. Accordingly, if the strain of the claimant's usual exertions causes collapse from heart weakness, back weakness, or hernia, the injury would be held to be accidental, and therefore compensable.
According to [1978] 1 LARSON's WORKMEN's COMPENSATION LAW (Matthew Bender) § 38.81, the “injury by accident” requirement was designed to set an arbitrary boundary on compensation of injuries or diseases so that “compensation will not be awarded for deaths not really caused to any substantial degree by the employment.” See also Sloss v. Industrial Commission, 121 Ariz. 10, 588 P.2d 303 (1978). (The court held that plaintiff's injury was not compensable because not accidental, and further held that injury by accident means that the condition must have been produced by an unexpected, unusual, or extraordinary stress.)
130 For a general discussion of causation, the reader should consult W. PROSSER, HANDBOOK OF THE LAW OF TORTS §§ 41-44 (4th ed. 1971).