(Re)Assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017

Abstract

This article presents a comprehensive history and analysis of work injury compensation in the U.S. from the time of the initial adoption of workers’ compensation laws in the early 20th century to 2017. Workers’ compensation is almost entirely the domain of state legislatures and state courts without any federal oversight or standards, making it particularly difficult to study. In this article, Part I (the Introduction) situates workers’ compensation within the social benefit system of the U.S. Part II provides a history of the evolution of the laws, describing three periods: an early period, during which state variation and inadequacy of benefits were commonplace; a turn toward concern about adequacy of benefits and reforms in state legislatures after the 1972 report of the National Commission on State Workmen’s Compensation Laws noted the inadequacy and inequity of the state systems; and retrenchment, starting in the early 1990s, as employers and insurers successfully have fought to reduce the growing costs of the program by limiting access to benefits. Part II also briefly describes recently successful litigation that relies on state constitutions to challenge the inadequacies of the state programs. Part III focuses on the key contextual forces influencing workers’ compensation, noting the ways in which the nature and regulation of work, conceptions of safety, the surrounding social safety net and the health care system have affected the evolution and functioning of the state workers’ compensation systems. This section concludes with a discussion of the way in which changes in political equilibrium play out in these programs. Part IV provides a review of the current status of workers’ compensation in the U.S., including the adequacy of benefits and the dueling views that underlie some of the political battles in the states. It summarizes evidence that suggests that many injured workers never receive compensation, and explores the problems caused by inconsistent narratives regarding the purpose of the program. Finally, Part V addresses the future of workers’ compensation in the U.S.

Keywords: Workers’ compensation, Social insurance, Occupational safety and health, Employee benefits, Employment law