Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice

34 Pages Posted: 29 Nov 2017 Last revised: 31 Dec 2017

George W. Conk

Fordham Law School

Date Written: November 28, 2017

Abstract

Many observers, looking back at the early twentieth century’s creation by states of the workers compensation laws have seen a grand bargain. In this view tort remedies were compromised for the certainty of more modest scheduled statutory benefits. This study argues that the workers compensation laws were a major victory for labor. Workers gained the right to medical treatment, temporary total disability benefits, and permanent disability benefits. The medical benefits and temporary disability were prompt and reliable for all work related accidental injuries. The loss of the tort remedy against the employer was of little significance since compensation via tort was highly uncertain. Further the right to sue third parties in tort was preserved – and enabled to some degree by the workers compensation benefits received.

But occupational diseases were excluded until pressure by labor and pro labor interests achieved reforms. Much of the driving force was the recognition of pneumoconiosis – particularly silicosis. The granite cutters of Vermont spurred studies which demonstrate the limits of the germ theory of disease and identified the deadly granite dust as the cause of lung disease. Many states broadened their definitions of occupational disease.

Asbestos related disease – particularly the form of pneumoconiosis known as asbestosis advanced the science of pulmonary disease. The landmark studies by Irving Selikoff of morbidity and mortality of insulation workers created a body of evidence that supported the massive wave of third party asbestos litigation. The asbestos epidemic litigation advanced the doctrines of strict product liability law, drove courts to advance management of “mass torts” via multi-district litigation, and increased the competence of courts to deal with epidemiological and other forms of scientific evidence of disease causation.

Suggested Citation

Conk, George W., Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice (November 28, 2017). Rutgers Law Review, Vol. 69, No. 1139, 2017; Fordham Law Legal Studies Research Paper No. 3078799. Available at SSRN: https://ssrn.com/abstract=3078799

George W. Conk (Contact Author)

Fordham Law School ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-7446 (Phone)

HOME PAGE: http://law.fordham.edu

Register to save articles to
your library

Register

Paper statistics

Downloads
46
Abstract Views
204
PlumX