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Published online by Cambridge University Press: 24 February 2021
Under most workers' compensation statutes, an injury must “arise out of” and “in the course of” employment in order to qualify as a compensable disability. In U.S. Industries v. Director, the Supreme Court held that the Longshoremen's and Harbor Workers' Compensation Act must be strictly construed to avoid transforming the compensation system into a form of social insurance. In U.S. Industries, the Court denied a disability claim based on an arthritic condition which was manifested while the worker was at home in bed. This Note contends that the Supreme Court neglected to consider pertinent medical realities when analyzing the causation question. Thus, the decision undermines the overall rationale behind workers' compensation legislation. Nonetheless, the Note argues that the case does not relax the requirement of adequately scrutinizing the causative elements underlying any reasonable claim for disability benefits. An analysis adequately accommodating both medical and legal facts, instead of relying upon the vagaries of statutory interpretation, is necessary to improve the efficiency and fairness of workers' compensation disability determinations.
1 I. Illich, Medical Nemesis 263 (1976). In contrast to workers’ compensation statutes which compensate injured workers, the Occupational Safety & Health Act (OSHA) requires employers to set standards which are “reasonably necessary” to provide a safe workplace. 29 U.S.C. §§ 651-678 (1982). OSHA sets these standards pursuant to an ad hoc cost-benefit analysis, which balances employee health with economic and technological feasibility. Id. Considerable controversy exists over how safe the reasonable workplace must be as some degree of risk is considered permissible and justifiable under the feasibility standard. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980).
2 3 W. Schneider, Workmen's Compensation Text § 925, at 499 (1943).
3 W. Keeton, D. Dobbs, R. Keeton & R. Owen, Prosser & Keeton on the Law of Torts § 80, at 569 (5th ed. 1984).
4 Id.
5 W. Dodd, Administration of Workmen's Compensation 13-16 (1936).
6 A. Millus & W. Gentile, Workmen's Compensation Law and Insurance 94 (1980); see also 1 A. Larson, Workmen's Compensation Law §§ 3.10-3.40 (1985) (distinguishing workers’ compensation systems from social insurance schemes).
7 33 U.S.C. §§ 901-950 (1982). Pursuant to the LHWCA's coverage provision in § 903, the Act was made applicable to employees within the District of Columbia by Act May 17, 1928, ch. 612, 45 Stat. 600, as amended (D.C. Code, §§ 36-301 to -344). Section 920(a) states: “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary—(a) that the claim comes within the provisions of this chapter.“
8 33 U.S.C. § 902(2). Section 902(2) states: “The term ‘injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.“
9 Id.
10 See generally 1 A. Larson, supra note 6, at § 6.10.
11 33 U.S.C. § 908(a) (1982).
12 See id. at §§ 908(c)-908(h).
13 1A A. Larson, supra note 6. at § 29.22.
14 627 F.2d 455 (D.C. Cir. 1980), rev'd, U.S. Industries v. Director, 455 U.S. 608 (1982).
15 Riley, 627 F.2d at 459.
16 I.e., not presently manifesting.
17 455 U.S. 608 (1982).
18 J. Hood & B. Hardy, Workers’ Compensation and Employee Protection Laws 7 (1984).
19 Controversy originally centered around the “by accident” language, which led to numerous contradictory holdings. For example, the gradual contraction of lead poisoning was held not an “accident” under the Act of 1897, but was later held within the provision of the Act of 1906 without regard to the element of the accident. J. Boyd, Workmen's Compensation § 573 (1913). The acceleration of disease was held compensable as “givfing] life to certain latent causes of mischief in the body.” Ystradowen Colliery Co. v. Griffiths, [1909] 100 CT. 869, 2 B.W.C.C. 357, 359 (Cozens-Hardy, Master of the Rolls). In contrast, a case of gradual paralysis was considered merely a “breakdown from overwork,” Walker v. Hockney Bros., [1909] 2 B.W.C.C. 20; and a case of apoplexy (a stroke-like condition caused by acute vascular lesions of the brain resulting in stroke or paralysis) where the cause of death was equally consistent with an accident and with no accident, was denied. Barnabas v. Bersham Colliery Co., [1910] 4 B.W.C.C. 119.
20 Lord Loreburn in Kitchenham v. S.S.Johannesburg [1911] 4 B.W.C.C. 311, 312. “We have to decide each case on the facts. Argument by analogy is valueless.“
21 Lord Wrenbury in Herbert v. Fox, 1916 A.C. 415, 419, 9 B.W.C.C. 164, quoted in Dodd, supra note 5, at 682; and S. Horovitz, Horovitz on Workmen's Compensation 94-95 (1944).
22 Mackinnon v. Miller [1909] 2 B.W.C.C. 64; Fennah v. Midland and Great Western Railway of Ire. [1911] 45 Irish L.T. 182, 4 B.W.C.C. 440; J. Boyd, supra note 19, at 447; H. Bradbury, Workmen's Compensation and State Insurance Law of the U.S. 103-05 (1912).
23 The last state to adopt a workers’ compensation statute was Mississippi in 1949. 1 A. Larson, supra note 6, at § 5.30.
24 Sawyer's Case, 315 Mass. 75, 76, 51 N.E.2d 949, 950 (1943).
25 McMahon's Case, 236 Mass. 473, 476, 128 N.E. 778, 780 (1920).
26 S. Horowitz, supra note 21, at 133.
27 For a general discussion, see R. Dubos, Mirage of Health (1959). For specific examples, see I. Illich, supra note 1; D. Turk, D. Meichenbaum, & M. Genest, Pain and Behavioral Medicine—A Cognitive-Behavioral Perspective (1983).
28 L. White, Human Debris 77-93 (1983).
29 W. Schneider, supra note 2, § 1542, at 5 (quoting Kansas City Fibre Box Co. v. Connell, 5 F.2d 398, 400 (8th Cir. 1925)).
30 In re Betts, 66 Ind. App. 484, 118 N.E. 551, 554 (1918) (Hottel, J., dissenting).
31 W. Schneider, supra note 2, § 1542,at 5 n.12 (quotingIn re Betts, 66 Ind. App. 484, 118 N.E. 551 (1918)).
32 L. White, supra note 28.
33 J. Hood & B. Hardy, supra note 18, at 55: “Needless to say, a fault based risk analysis is totally incompatible with the objective and policies of workers’ compensation.“
34 Id.; see also Comment, Worker's Compensation: A New Standard for Work Connectedness, 32 U. Fla. L. Rev. 828, 833 (1980)Google Scholar.
35 J. Hood & B. Hardy, supra note 18, at 55-56.
36 The main thrust of many occupational disease statutes is to distinguish those diseases which can be clearly linked to the nature of an employment from those which can just as readily be contracted in a variety of other working environments or in ordinary life. Hence, the use of the term, “workplace contributory.” See, e.g., Cal. Labor Code § 3208 (West Supp. 1987); VA. Code §65.1-46.1 (1987); Neb. Rev. Stat. §48-151(b) (1984); Ill. Rev. Stat. ch. 48, § 138.2 (1986).
37 See infra notes 60-67 and accompanying text.
38 1A. Larson, supra note 6, at § 6.10.
39 Thus, an employee will be denied compensation on the theory that any person engaged in similar outdoor work would be subject to the same risk. See, e.g., Robinson's Case, 292 Mass. 543, 198 N.E. 760 (1935).
40 1 A. Larson, supra note 6, at §§ 6.10, 6.60.
41 “This differs from the peculiar risk test in that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment.” Id. at § 6.30 (emphasis in original).
42 See Dennis v. White & Company, 1917 A.C. 479, 10 B.W.C.C. 280, for an example of a leading case using this doctrine.
43 In other words, if the injury would not have occurred but for the employment situation, then it would be deemed compensable. See, e.g., Suburban Ready Mix Concrete v. Zion, 443 N.E.2d 1241 (Ind. App. 1983); Phil A. Livesley Co. v. Russ, 296 Or. 25, 672 P.2d 337 (1983), aff'g 60 Or. App. 292, 653 P.2d 274 (1982); Grimaldi v. Shop Rite Big V, 90 A.D.2d 608, 456 N.Y.S.2d 176 (1982).
44 1 A. Larson, supra note 6, at §§ 6.30 and 10.00; (citing Jones v. Industrial Comm'n, 78 I11.2d 284, 399 N.E.2d 1314 (1980); Hensley v. Glass, 226 Kan. 256, 597 P.2d 641 (1979)).
45 1 A. Larson, supra note 6, at § 29.22
46 1A A. Larson,™/*™ note 6, at § 29.22; Concordia v. U.S. Postal Serv., 581 F.2d 439 (5th Cir. 1978).
47 For example, in American Motorists Ins. Co. v. Steel, 229 S.W.2d 386 (Tex. Civ. App. 1950), a riveter, who drilled holes in metal and had needle pointed shavings in his hair and clothes, was driving home from work fifteen minutes after the end of his shift, when a steel sliver fell from his eyebrow into his eye causing severe injury. This was held non-compensable, although a “clearer instance of an injury caused by the employment cannot be imagined.” 1A Larson, supra note 6, at § 29.22.
48 J. Hood & B. Hardy, supra note 18, at 57-68: “[I]f one's employment has produced an injury which occurs or manifests itself while one is not at work and off the employer's premises, there should still be coverage. In other words, one need not be acting within the course and scope of one's employment when an employment-related harm produces an injury.“Id. at 68. In Daniello v. Machise Express Co., 119 N.J. Super. 20,289 A.2d 558 (1972), a truck driver delivering jet fuel was splashed and the fumes permeated his uniform. Once home, he lit a match and burst into flames. The Court reversed a denial of benefits, holding the incident had its inception in claimant's work. 1A A. Larson, supra note 6, at § 29.22.
49 1A A. Larson, supra note 6, at § 29.22 n.42. “If, in the langauge of Justice Cardozo, the injury… from origin to ending must be taken to be one, it should be sufficient that the origin of this single unit of injury lies within the bounds of employment, whether the ending, in the form of the actual impact, falls within those bounds or not.” Id. at n.43 (quoting Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156 N.E. 642 (1927)).
50 See Ryan v. Trojan Bar & Grill, 98 A.D.2d 889, 470 N.Y.S.2d 877 (1983), Malacarne v. CityofYonkers Parking Auth., 41 N.Y.2d 189,391 N.Y.S.2d 402 (1976), affg 50 A.D.2d 678, 375 N.Y.S.2d 206 (1975); Thornton v. Chamberlain Mfg. Corp., 62 N.J. 235, 300 A.2d 146 (1973), rev'g 118 N.J. Super. 540, 289 A.2d 262 (App. Div. 1972).
51 1 A. Larson, Larson's Workmen's Compensation § 29.00 (Desk ed. 1985).
52 1 A. Larson, supra note 6, at § 10.33.
53 J. Hood & B. Hardy, supra note 18, at 68.
54 Fenton v. Thorley & Co., 1903 A.C. 443, quoted in IB A. Larson, supra note 6, at § 37.20.
55 Indeed, English law intended to deny compensation only to employees who injured themselves intentionally, but this narrow construction was broadened by the American courts. See A. Millus & W. Gentile, supra note 6, at 101.
56 IB A. Larson, supra note 6, at § 37.20.
57 J. Hood & B. Hardy, supra note 18, at 79; A. Millus & W. Gentile, supra note 6, at 103-05; Calhoun v. Hillenbrand Indus., Inc., 269 Ind. 507, 381 N.E.2d 1242 (1978), rev'g 374 N.E.2d 54 (Ind. App. 1978). Claimant's back began hurting at work. An orthopedist testified that her arthritic condition and enlarged intervertebral disk could be job-related. The Industrial Board denied compensation because it could identify no specific time or incident of injury. The Appeals Court reversed, holding that an unexpected result is all that is required to show an accidental injury. The Supreme Court of Indiana again reversed, based on the Board's finding of fact that there was no unexpected event. IB A. Larson, supra note 6, at § 38.32(a) n.63.
58 As early as 1911 “inferences” were made that injury resulted from an accident. See J. Boyd, supra note 19, at 1034. The LHWCA and other statutes attempted to clarify this by substituting the word “accidental” for “by accident.” Moreover, the National Commission on State Workmen's Compensation Law recommended the complete elimination of the accident requirement. National Commission on State Workmen's Compensation Law, Commission Report 49 (July 1972).
59 IB A. Larson, supra note 6, at § 38.00; see, e.g., Svolos v. Flatbush Plaza Restaurant, 21 A.D.2d 703, 249 N.Y.S.2d 250 (1964); Turner v. Workmen's Compensation Appeals Bd., 42 Cal. App. 3d 1036, 117 Cal. Rptr. 358 (1974); Southern Stevedoring Co. v. Henderson, 175 F.2d 863 (5th Cir. 1949).
60 IB A. Larson, supra note 6, at § 38.83. Although many times when courts hold that sufficiently unusual exertion has not been shown, the underlying trouble is really that the court is not satisfied with proof of causation. Id. at § 38.81.
61 Id. at § 38.83(a).
62 Id.
63 Id. at §§ 41.10-41.13.
64 Id.
65 £.g. 5 U.S.C. § 8101(5) (1982); Cal. Labor Code § 3208 (West 1971); Mass. Gen. Laws Ann. ch. 149, § 1 (West 1982). See generally Chamber of Commerce of the United States, Analysis of Workmen's Compensation Law (1987).
66 See IB A. Larson, supra note 6, at § 41.33(a), (b).
67 J. Hood & B. Hardy, supra note 18, at 82; Florida State Hosp. v. Potter, 391 So. 2d 322 (Fla. App. 1981).
68 455 U.S. 608 (1982), revg Riley, 627 F.2d 455 (1980).
69 See 1 A. Larson, supra note 6, at §§ 12-13. These cases range back to the 1930's and 1940's. For example, Texas Indemnity Ins. Co. v. Godsey, 143 S.W.2d 639, 642 (1940): “Even though arthritis existed, if the injury aggravated same to the extent of producing incapacity, this does not preclude recovery of compensation. This is true even though in time, uncontributed to by the injury, the arthritis would have caused incapacity.“
70 A condition which is dormant; it exists but is not causing any problems at this time. See Webster's New Collegiate Dictionary 69 (1979).
71 A. Millus & VV. Gentile, supra note 6, at 96. The U.S. Industries Court discussed this in dicta because the majority determined that the claim itself was deficient. See, e.g., Scuderi v. Miss Ann Dresses, 24 A.D.2d 905, 265 N.Y.S. 2d 465 (1965) (aggravation of pre-existing osteoarthridc condition [see note 188 and accompanying text], compensation denied due to lack of suddenness in cause or result). But see Employers Mut. Liab. Ins. Co. of Wis. v. Industrial Comm'n, 24 Ariz. App. 427, 539 P.2d 541 (1975) (claimant's job was stocking supermarket shelves, which required making abnormal movements of her neck and arms. The Court held the series of contortions an accident making bursitis compensable under the statute); Owens v. Workmen's Compensation Appeals Bd., 39 Pa. Commw. 510, 395 A.2d 1032 (1979) (claimant experienced osteoarthritic pain in neck, shoulders, and back, which was aggravated by lifting. The court awarded benefits stating that it is not necessary to point to any specific incident due to the heavy nature of the work); Young v. Salt Lake City, 97 Utah 123, 129, 90 P.2d 174, 176 (1939) (“The time taken for the effects of the occupation to become serious is not the governing factor. Some people are less resistant to imperfect conditions than others. Thus to stress the length of time as a basis of determining accidental nature of the illness is to adopt a rule which may, in many cases, be governed by the bodily resistance of the individual.“).
72 See, e.g., Smith v. I.R. Equipment Corp., 60 A.D.2d 746, 400 N.Y.S.2d 900 (1977) (allowing compensation if there is a nexus between employment and the activation of an asymptomatic condition).
73 56 A.D.2d 239, 392 N.Y.S.2d 496 (1977).
74 Id. at 241, 392 N.Y.S.2d at 498.
75 Id. at 240, 392 N.Y.S.2d at 497 (citing Matter of Guardi v. General Elec. Co., 30 A.D.2d 738, 291 N.Y.S.2d 457 (1968)).
76 Gardner v. Director, Office of Workers’ Compensation Programs, 640 F.2d 1385 (1st Cir. 1981).
77 54 Or. App. 375, 635 P.2d 378 (1981).
78 Silva v. New England Group Maremont Corp., 444 A.2d 343 (Me. 1982).
79 627 F.2d 455 (D.C. Cir. 1980).
80 Great Atlantic & Pacific Tea Co. v. Cardillo, 127 F.2d 334 (D.C. Cir. 1942) (award of total disability granted where employment-related lifting aggravated pre-existing spinal arthritis).
81 The statutory presumption that an injury falls within the Act was previously held rebuttable only by substantial evidence to the contrary. See Mitchell v. Woodworth, 449 F.2d 1097 (D.C. Cir. 1971); Butler v. District Parking Management Co., 363 F.2d 682 (D.C. Cir. 1966). The presumption was limited in that it did not possess the quality of affirmative evidence. Del Vecchio v. Bowers, 296 U.S. 280 (1935).
82 377 F.2d 144 (D.C. Cir. 1967).
83 Id. at 144, 146. The court did relate the disability back to the accident which caused the first of the plaintiff's two infarctions. However, the record did not isolate a specific event as the catalyst for the second infarction, also held to be compensable injury.
84 407 F.2d 307 (D.C. Cir. 1968).
85 Id. at 312 n.11 (citing H. Mcniece, Heart Disease and the Law 12 (1961)).
86 554 F.2d 1075 (D.C. Cir. 1976).
87 Id. at 1085.
88 See supra note 15 and accompanying text.
89 U.S. Industries, 455 U.S. at 617 (Brennan, J., dissenting); see A. Millus & W. Gentile, supra note 6 and accompanying text.
90 MU.S. Industries, 455 U.S. at 615 n.10; see A. Millus & W. Gentile, supra note 6.
91 455 U.S. 608 (1982).
92 Riley, 627 F.2d at 457.
93 Id.
94 U.S. Industries, 455 U.S. at 610 n.2.
95 An ALJ is an employee of the Social Security Administration who is charged with the initial fact finding determination.
96 See supra note 9 and accompanying text.
97 See supra note 8.
98 Longshoreman's and Harbor Worker's Compensation Act §§ 20, 20(a); 33 U.S.C. § 920 (1927).
99 See Murphy v. SDCA/Shayne Bros., 7 Ben. Rev. Bd. Serv. (MB) 309 (1977).
100 Riley, 627 F.2d at 457.
101 Id.
102 Id.
103 Id.
104 Id. at 456, 459.
105 Id. at 458.
106 Id at 459. The Court noted, however, J.V. Vozollo Inc. v. Britton, 377 F.2d 144 (D.C. Cir. 1967), which stated that employers must accept their employee's predisposing frailties; Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968) (en banc).
107 Riley, 627 F.2d at 458.
108 Id. (citing Wheatley, 407 F.2d at 313.)
109 Riley, 627 F.2d at 458 (citing Wheatley, 407 F.2d at 312.)
110 Id. at 458.
111 Id. at 459; Wheatley, 407 F.2d at 312; Mitchell, 449 F.2d 1097; Vendemia v. Cristaldi, 221 F.2d 13 (D.C. Cir. 1955).
112 Riley, 627 F.2d at 458.
113 Id. at 45 (citing Swinton v. Kelly, 554 F.2d 1075 (D.C. Cir. 1976), cert, denied, 429 U.S. 82 (1976)).
114 Riley, 627 F.2d at 459 (citing Butler v. District Parking Management Co., 363 F.2d 682 (D.C. Cir. 1966)); Mitchell, 449 F.2d at 1097; Wheatley, 407 F.2d at 307.
115 Riley, 627 F.2d at 459.
116 Id.
117 Justice O'Connor took no part in the decision. Justice Brennan, with whom Justice Marshall joined, wrote a dissenting opinion.
118 U.S. Industries, 455 U.S. at 612.
119 Id.
120 Id. at 613 & n.7. In Brennan's dissent, he claimed the majority construed “claim for compensation” as equivalent to “claim for relief” as used in Rule 8(a) of the Federal Rules of Civil Procedure. Id. at 620 (citing FED. R. CIV. P. 8(a)).
121 Id. at 615-16.
122 Id. at 614.
123 33 U.S.C § 913 (1982).
124 Id. at § 912(b).
125 U.S. Industries, 455 U.S. at 613 n.7.
126 Id. at 614 n.7 (quoting 3 A. Larson, supra note 6, at § 78.10.)
127 See id. at 612-13.
128 Id. at 615; see supra note 114.
129 Id. at 615-16.
130 It is questionable whether a work-related arthritic condition could be inferred from the facts.
131 U.S. Industries, 455 U.S. at 616; W. Dodd, supra note 5, at 681.
132 U.S. Industries, 455 U.S. at 617 (Brennan, J., dissenting). 133 Id.
134 See id. at 620.
135 1 A. Larson, supra note 6, at § 10.33.
136 U.S. Industries, 455 U.S. at 617-18.
137 U.S. Industries, 455 U.S. at 617 (quoting O'Keefe v. Smith Assocs., 380 U.S. 359, 362 (1965)).
138 U.S. Industries, 455 U.S. at 617 (quoting Wheatley, 467 F.2d at 313.)
139 U.S. Industries, 455 U.S. at 618.
140 Id. at 618-19. Note 2 cites 1A A. Larson, supra note 6, at § 29.00-29.10. In practice the two tests of “arising out of and in the course of tend to merge into a single determination of ‘work-relatedness.’ “ U.S. Industries, 455 U.S. at 618.
141 U.S. Industries, 455 U.S. at 618.
142 Id. at 620.
143 Id.
144 Id.
145 Id.
146 Id. at 621.
147 Id. at 621 n.5.
148 Id. at 621. “Moreover, the Court's reliance on a written pleading requirement is wholly out of step with the sensible informality with which the Act is administered … . [I]ssues are not narrowed through pleadings, but rather through a mixture of formal and informal pre-hearing procedures. 20 CFR Sees. 702.311-702.317 (1981) In addition, ‘… the administrative law judge may in his discretion reopen the hearing to consider a new issue. § 702.336(b).” Id. at 621-22.
149 Id. at 621-23.
150 Id. at 622-23.
151 An example of this would be an employee such as Riley now claiming an injury not originally pled.
152 U.S. Industries, 455 U.S. at 623.
153 Id. at 619 n.3.
154 Id.
155 Id.
156 Id. at 623. Brennan cites Justice Douglas as stating: “[T]he problems under this Act should rest mainly with the Courts of Appeals.” O'Keefe, 380 U.S. at 371 (dubitante). A. Millus & W. Gentile, supra note 6, at 94.
157 See supra note 7 and accompanying text.
158 See A. Millus & W. Gentile, supra note 6 and accompanying text.
159 3 A. Larson, supra note 6, at § 78.10; J. Hood & B. Hardy, supra note 18, at 109.
160 1 A. Larson, supra note 6, at § 10.33 n.561.
161 See note 6 and accompanying text; O'Keefe, 380 U.S. at 362 (1965); the third and more straightforward principle is that the Act consists of no-fault laws to compensate injured workers.
162 U.S. Industries, Abb U.S. at 623.
163 Id.
164 This, according to noted medical economist Peter Barth, should be developed with the help of medical experts not confined to a strict legal construction. National Legal Center For the Public Interest, Final Edited Proceedings of the National Conference on Workmen's Compensation and Workplace Liability 321 (L. Theberge, R. Muth, N. Hollenshead, J. Wyerman eds. 1981) (remarks of P. Barth) [hereinafter referred to as National Conference].
165 IB A. Larson, supra note 6, at § 38 (h).
166 The discrepancy arises on one level from the disagreement concerning the overriding jurisprudential focus of workers’ compensation legislation. See supra notes 1-6 and accompanying text; 3 A. Larson, supra note 6, at §§ 78.31, 78.10.
167 U.S. Industries, 455 U.S. at 620.
168 Id. at 611.
169 Riley, 627 F.2d at 458-59.
170 U.S. Industries, 455 U.S. at 615-16.
171 Id. at 618-19 & n.3.
172 Id. at 619 n.3 (quoting 1 A. Larson, the Law of Workmen's Compensation § 10.33 (1978)).
173 Sprague v. Director, 688 F.2d 862 (1st Cir. 1982); Bartelle v. Mclear Trucking Co., 687 F.2d 34 (4th Cir. 1982); both citing U.S. Industries.
174 Stevenson v. Linens of the Week, 688 F.2d 93 (D.C. Cir. 1982); Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286 (3d Cir. 1982).
175 Rustrata v. U.S. Merit Systems Protection Bd., 549 F. Supp. 344 (D.D.C. 1982).
176 Hensley v. Washington Merit Area Transit Auth., 655 F.2d 264 (D.C. Cir. 1981) cert, denied, 456 U.S. 904 (1982). Curiously, the Supreme Court denied certiori in Hensley some six days before announcing the U.S. Industries decision. Hensley was a bus driver with a preexisting, asymptomatic general psoriatic condition on his hands and feet. When construction on his route exposed him to greater vibration and stress, his condition was severely aggravated and he was unable to work. The majority cited Riley in overturning the ALJ's and BRB's denials of compensation.
Hensley appears to be even more inimical than Riley to the Supreme Court's position. For example, one member of the D.C. Circuit dissented, arguing that Hensley's lesions were the result of the psoriasis, not the cause. Hensley, 655 F.2d at 275. Both the majority and the dissent “poor mouthfed]” the opposing side's physicians. Id. at 276. The dissent stated that the chief expert witness for Hensley “had a definite self-interest in attributing Hensley's psoriatic flare-up to some cause other than his own treatment.” Id. at 277. In a manner even more pronounced than in Riley, the proceedings uncovered a plethora of documented and medically recognized pre-existing causes which were likely to have produced the aggravation. Id. at 278-79. A major distinction between this case and Riley is that there is disputed medical evidence in Hensley. This tends to suggest that Larson (see supra note 166), was correct in suggesting the U.S. Industries majority was obsessed with Riley's fabricated story.
177 See supra notes 45-53 and accompanying text. The question of legal causation asks what type of exertion satisfies the “arising out of and in the course of” test.
178 Mr. Riley's alleged injury is an excellent example of this phenomenon. Many hours of certain types of work lead to conditions such as arthritis, just as many hours of certain types of exposures may lead to diseases such as asbestosis or black lung. National Conference, supra note 164, at 305-08.
179 LaDou, Mulryan & McCarthy, Cumulative Injury or Disease Claims: An Attempt to Define Employers’ Liability for Workers’ Compensation, 6 AM. J.L. & MED. 1,2 n.5 (1980).
180 Id. at 3.
181 See supra notes 136-153, and accompanying text.
182 National Conference, supra note 164, at 306-
183 See supra notes 60-67 and accompanying text.
184 Legal causation itself poses many difficulties. For example, 1A A. Larson note 6, at § 38.83(a): (1) “arising” is passive; “caused” is active; and “employment” is a condition, not a force. In tort law the beginning point is an act, but in workers’ compensation it is a relation or condition (i.e., employment); (2) if the draftsmen had meant “caused,” why is the word completely absent?; (3) proximate or legal cause is out of place in this context because it rests on the idea of fault. The fundamental basis of legal causation—negligence and foreseeability— is simply not a question; and (4) the British Parliament, the original drafters of this language, adopted social insurance only a short period after their workers’ compensation legislation was enacted, thus foreclosing many of the causation problems. Id.
185 LaDou, Mulryan & McCarthy, supra note 179, at 14.
186 Cf. 1 A. Larson, supra note 6, at § 13.11 (a). Larson, discussing a case in which a sneeze aggravated a back injury into a more serious disc herniation, argues that “if the herniation had occurred while the claimant was asleep in bed, his characterization as a mere sequel to the compensable injury would have seemed obvious. This case should be no different if the triggering episode is some non-employment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances.” (Emphasis added).
187 J. Hood & B. Hardy, supra note 18, at 19.
188 There are several types of arthritis: (1) inflammatory (or “rheumatoid“), (2) noninflammatory (or “degenerative“), and (3) infectious. Degenerative arthritis is further divided into osteoarthritis, hypertrophic arthritis, and traumatic arthritis. W. Mercer & R. Duthrie, Orthopaedic Surgery 442-43 (6th ed. 1964). In all cases the clinical course is insidious, or slowly progressive.
189 L. Mercier & F. Pettid, Practical Orthopedics 167 (1980).
190 L. Gillis, supra note 188, at 79; a doctor describing Riley's working conditions stated: “most of his work is overhead type and involves quite a bit of hypertension of the neck. That means most of his work he will have to do with his neck bending upwards.” U.S. Industries, Abb U.S. at 619 n.3.
191 L. Mercier & F. Pettid, supra note 189, at 168. A synovial lining encloses the joint space of all diarthrodial joints. This membrane reflects local and systemic disease and is responsible for the production of joint fluid. This synovial fluid serves the dual function of lubrication and nutrition.
192 Id. at 169. X-rays may reveal joint space narrowing, spur formation, sclerosis, and subchondral cyst formation.
193 Seres & Newman, Negative Influences of the Disability Compensation Systems: Perspectives for the Clinician. 3(4) Seminars in Neurology 360, 366 (Dec. 1983).
194 Ilardi & Sokoloff, The Pathology of Osteoarthritis, 11 Semin. Arthritis Rheum. 3-7 (Supp. 1981).
195 Id.
196 For example) patients complained of pain where x-rays showed the presence of disease in only 65% of arthritic knees and 20% of afflicted hands. However, 80% of symptomatic hips were confirmed by x-ray. Bjelle, Management of Degenerative Joint Diseases, 43 Scand. J. Rheumatol. 1 (Supp. 1980); Wright, The Management of Degenerative Joint Disease—An Introduction, 43 Scand. J. Rheumatol. 7, 11 (Supp. 1980).
197 Nikson, , Clinical Features and National Course of Coxarthritis and Gonarthrosis, 43 Scand. J. Rheumatol. 13 (1980)Google Scholar.
198 Seres & Newman, supra note 193, at 366; Report of National Commission on State Workers’ Compensation Laws, supra note 58, at 50-51: “determination of etiology or cause of a disability in a medical sense is often difficult or even impossible.“
199 In addition to this assessment problem, present workers’ compensation legislation actually inhibits the effectiveness of the medical arena. The system makes it appear as though it is the physician who takes away the claimant's disability benefits, thus ascribing to them an adversarial rather than the traditional supportive role. Harman, , Evaluating the Patient Who Claims to be Disabled, 7 Primary Care 607 (1980)Google Scholar. This misperception of responsibility is compounded by the failure of the workers’ compensation system to discourage workplace injuries. The payments are distributed from an intangible, amorphous source, providing little incentive for patients, attorneys, or health care providers to curb costs. Indeed, the employee and the health care system are rewarded when the patient returns to work. The reinforcement criteria leading to the conditioning process are thus completely out of line with our ultimate goals of less workplace injuries and a corresponding decrease in workers’ compensation costs.
200 Seres & Newman, supra note 193, at 367.
201 “Nociception,” or the physical tissue-damaging energy impinging upon nerve endings to produce sensation, influences our perception of both the internal and external environment. We develop a response to this environmental contingency, and this behavioral action is called “operant pain.” This outward manifestation of pain may not always be congruent with the actual degree of pathology. For example, individuals receiving workers’ compensation may have a vested interest in at first exaggerating their pain, and then perpetuating the fiction. See Fordyce, Learning Processes in Pain, the Psychology of Pain 49-72 (R. Sternbach ed. 1978); Wolf, The Role of the Brain in Bodily Disease, Brain, Behavior and Bodily Disease 1-9 (H. Weiner ed. 1981); L. Thomas, Pain (1942).
202 “Nociception is a painful sensation stimulated by injury.” Leavitt, , Organic Status, Psychological Disturbances and Pain Report Characteristics in Low-Back Pain Patients on Compensation, 7 SPINE 398 (1982)CrossRefGoogle Scholar. Complaints of pain and physical limitations, doctor contacts, drug use and suffering behavior are all “behavioral” and because of this are subject to change by reinforcement, conditioning, and motivation.
203 Seres & Newman, supra note 193, at 367. “To equate ‘operant pain’ with disability and make larger financial rewards on that basis is diametrically opposed to the usefulness of the clinical concept of operant conditioning.” Id.
204 Id. at 365. The crucial point is that there is no one-to-one correlation between impairment and disability. Factors such as education, work experience, economic opportunity, and social and personal attitudes intervene, influencing the disability variable. Sunshine, , Disability Payments Stabilizing After an Era of Accelerating Growth, 104 Monthly Lab. Rev. 17 (1981)Google Scholar. “[Disability is not a purely medical question: It is a hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get suitable work.” 3 A. Larson, supra note 6, at § 79.53 (footnotes omitted)
205 Richman, , Impairment and Disability, The Conflicting Social Objectives Underlying the Confusion, 78 CHEST. 367 (1980)CrossRefGoogle Scholar. Indeed, a claimant may be statutorily totally disabled and yet have enough reserve capacity to be a marathon runner. Id.
206 when surgery fails, “the least reliable assessor of the patient's medical capacity is the patient's surgeon.” Seres & Newman, supra note 193, at 366. Thus, physicians are burdened enough with the strictly medical aspects of disability and are not in a position to form an unbiased opinion.
207 See infra text accompanying note 208.
208 The requirement of “accidental” injury should be limited simply to requiring that the injury be genuinely unexpected, meaning not planned by the claimant, rather than the current majority requirement that the conditions be unexpected and occur at a definite period time. Fenton v. Thorley and Co., 1903 A.C. 443; IB A. Larson,supra note 6, at §37.20. The additional element of suddenness or definiteness in time has been severely criticized as a misreading of the statute. Some judges are concerned that this liberal construction of the “accidental” phraseology will open the flood gates. Purity Biscuit Co. v. Industrial Comm'n, 115 Utah 1, 15-17, 201 P.2d 961, 973-75 (1949)(Latimer, J., dissenting). Yet, California, Massachusetts, Minnesota and Iowa function quite satisfactorily without this “accidental” language, leaving the causal connection to operate as the sole issue of analysis. IB A. Larson, supra note 6, at §§ 38.83(f), 37.10.
209 Letter from Joel Seres, M.D., Director of the Northwest Pain Center, Portland, Oregon, to Jordan Yospe (Feb. 1986). 210 Telephone interview with Joel Seres, M.D. (Apr. 1986); IB A. Larson supra note 6, at
210 Telephone interview with Joel Seres, M.D. (Apr. 1986); IB A. Larson supra note 6, at 39.10.
211 The 1970's saw a great increase in the expense of the workers’ compensation system. Total benefits paid under workers’ compensation programs increased from $3 billion in 1970 to $7.6 billion in 1976, and cost employers an estimated $15.8 billion in 1978. See Price, Workers’ Compensation Programs in the 1970's, Social Security Bulletin, May 1979, at 3.
212 Pain centers are multidisciplinary programs, commonly utilizing the disciplines of neurology, orthopedics, psychology, nursing, physical therapy, rehabilitative medicine, and occupational therapy. Patients are weaned off pain medications and taught how to live with and function within the confines of their pain rather than simply accepting the label of “disabilitating.” See R. Sternbach, Pain PatientS—Traits and Treatment (1974); Mooney, Cairnes & Robertson, A System for Evaluating and Treating Chronic Back Disabilities, 124 Western J. of Med. 370-76 (1976).
213 L. Darling-Hammond & T. Kreisner, The Law And Economics Of Workers’ Compensation 32-38 (1980).