Workers' Compensation

Full text

Environmental
and
Occupational
Medicine.
Third
Edition.
edited by
William
N.
Rom.
Lippincott-Raven
Publishers,
Philadelphia
C
1998.
CHAPTER
128
Workers'
Compensation
Nicholas
A.
Ashford
At
the
turn
of
the century,
pressure
began
to
mount
to
shift
the
impact
of
occupational injury
from
the
worker
to
the employer and society
in
general.
This pressure came
both
from
increased numbers
of
successful
lawsuits
brought
by
workers
against
employers for
injuries
suf-
fered
on
the
job
and
from
increased
public
awareness
that
an
unfair burden
was
being
placed
on
workers
as
the
country
began
a
new
period
of
industrialization.
The
first
workers' compensation
laws were
passed
by
nine
states
in
191
1,
and
most
of
the
remaining
states
quickly
followed.
At
the
time these
laws
were
enacted,
occupational
disease
was
considered
a
far
less
pressing problem
than
injury.
It
was
not
until
1917
that
Massachusetts
and
California
became
the
first
states
to
compensate occupational
dis-
ease.
Unfortunately,
it
took
until
1976
for
all
50
states
to
have
some
form
of
occupational disease
coverage
(1),
although
that
coverage
fell
far
short
of
addressing most
of
the
serious
job-related
health
problems
(2-6).
The
primary
purpose
of
a
workers'
compensation
sys-
tem
is
to
cover
the
costs
of
medical
care
and
rehabilita-
tion
and
to
provide
compensation
for
lost
wages
resulting
from workplace illness
and
injury.
The agreement
embodied
in
the
state programs
is
that
the
employee
relin-
quishes
the
right
to
sue
an
employer
for
damages
in
return
for
fair and timely
compensation
for
occupational
injury.
To
receive
compensation,
the worker
need
not
prove
employer
negligence
but
only
that
the
injury
or
illness
was
caused
by
the
job.
Most
states
limit
compensation to
two-thirds
of
previous
wages
and
cover
all
medical
costs
(2).
Within
each
state
program,
three
fundamental
provi-
sions
characterize
the
operation
of
the
compensation pro-
grams:
first,
all
worker claims
are
handled
by
the
state
compensation
boards;
second,
the insurer
is
entitled
to
contest
permanent
disability
claims;
and
third, in
any con-
tested
case the
burden
of
persuasion
is
on
the
worker
(7).
These
provisions establish
a
one-sided,
no-fault
system
that
sometimes
operates to
the detriment
of
workers
(5,8).
In
addition
to
rapid
and fair compensation, workers'
compensation
programs
have
two
other
objectives. One
is
to
internalize
the
cost
of
workplace
disease and
injury
so
that
employers
will
bear
the
burden
of
maintaining
haz-
ardous
workplaces and
have
an
incentive
to
improve
job
safety and
health
conditions.
The
other
objective
is
to
mitigate
the
costs
to
a
single
employer
of
a
catastrophic
financial
loss by
spreading the
risk through
an
insurance
pool.
These
three goals
of
the
workers'
compensation
sys-
tem
work
somewhat
at
cross-purposes.
Employers
avoid
major
catastrophic costs
through
risk
spreading, which
is
accomplished
in
three
ways.
The
largest
firms,
which constitute about
1%
of
employers
and
10%
to
15%
of
employees,
are
self-insured.
Risk
spreading
is
accomplished
in
these
firms
because
of
the
large
number
of
employees.
The
smallest firms,
consti-
tuting 85%
of
employers
and
15%
of
employees,
are
class
rated.
Class
rating
sets
a
payroll
tax
deduction based
on
industry
illness and injury
history.
The
third
mechanism
used
by the
remainder
of
firms,
which constitute
14%
of
employers
and about
70%
of
employees,
is
experience
rating,
which
is
class
rating further
adjusted
to
individual
experience
(9).
While these
mechanisms
promote
the
goal
of
risk
spreading,
they
impair
attainment
of
the
goal
of
internalization
of
injury
and
illness
costs.
Since,
in
most
cases, the
full
cost
of
disease
and
injury
does not
fall
on
an
individual employer,
risk
spreading,
in
fact,
removes
a
considerable
portion
of
the
incentive
to
improve
job
health
and safety
(2).
1709
N.A.
Ashford:
School
of
Engineering,
Massachusetts Institute
of
Technology,
Cambridge,
Massachusetts 02139.
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1710
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CHAPTER
128
Even
if
the
risk
spreading
effects
of
the
insurance
sys-
tem
did
not
weaken
the employer's
impetus to
improve
job
health and
safety
conditions,
little actual
incentive
exists for
an
employer
to
internalize
the
costs
of
harm
of
chronic
occupational
disease.
The
employer faces
a
choice:
reduce
health
hazards
today
or
pay
compensation
costs
20
to
30
years
from
now.
The
cost
of
capital-the
interest-earning capacity
of
money-makes
it
economi-
cally
attractive
to
avoid
compliance
costs
today, even
if
higher
workers' compensation
benefits,
measured
in
nominal
terms,
might
have
to be
paid
decades
later.
If
the
costs
of
workers' compensation
were
the
only
incentive
an
employer
faced,
the
employer would
probably
profit
by
postponing
preventive
measures
to
improve
health
and
safety.
This
chapter
reviews
some
of
the
inequities
arising
from
variations
among
state
systems
and
discusses
efforts
to
ameliorate
them. General
trends
and costs
of
workers'
compensation
programs,
the
problems
of
occu-
pational
disease
coverage,
and
alternative
mechanisms
for
compensating occupationally diseased
victims
are
also examined.
INEQUITIES
AND
STATE
VARIATIONS
Prompted
by
the
1972
study
of
the
National Commis-
sion
on State
Workmen's
Compensation
Laws, the
1976
Democratic
platform promised
nationwide minimum
standards
for
workers' compensation
programs.
The
national
commission, composed
of
representatives
from
labor, industry, and
state
and
federal
governments,
inves-
tigated
the status
of
compensation
programs
in
all
50
states and
issued
a
unanimous
report
calling for
84
revi-
sions
in
state
systems
(10).
Among
the
problems
the
commission
found
were
that
many
employees
had
no coverage
at
all;
occupational
dis-
eases
were
not
covered
adequately;
there
were
arbitrary
limits
on
medical
and physical
rehabilitation
services,
as
well
as
on
the
duration
or
total
amount
of
benefits; there
were
inadequate
cash
benefits
for
temporary,
permanent,
total, and
partial disabilities
and
for
death
dependents;
coverage
of
work-related
diseases
with
latency
periods
was
limited
by
filing
restrictions; and
in
some cases,
fil-
ing
jurisdictions
were
unclear
and
provided
very
different
compensation
schedules.
The
commission
specified
19
changes
that
they
considered essential.
Their report
con-
cluded
that
the states
should
be given
some
time
to
straighten
out
their
programs
but
that
Congress
should
act
by
1975
if
all
states
had
not
then
resolved
the
most
severe
problems
of
workers'
compensation.
In
the
years
since the
national
commission's
report,
many states
have
updated,
expanded,
and
improved
their
programs.
These
improvements
have
included expanded
coverage
to
all
employees,
longer
periods
for
filing
claims,
full
medical
benefits
for
occupational disease,
and broader
representation
of
labor's
concerns
as
reflected
in
the
composition
of
the
state
compensation
boards. While
the
states'
record
of
compliance with
the
commission's
19
essential
recommendations
has
clearly
shown
improvement
(an
average
compliance
score
of
12.7
out
of
19.0
in
1992
compared
with
6.8 in
1972),
most
gains
(12.0)
had
already
been achieved
by
1980
(11).
As
of
1988,
only
some
30
states
were
in
full
com-
pliance,
and the
commission's
chairman expressed
his
continued disappointment, concluding "the quest
for
adequate
workers' compensation
benefits
is
far
from
over" (12).
In
recent
years,
many
states
have
further
increased
workers' compensation
benefits.
Nevertheless, workers'
compensation
benefits
still
vary
significantly
among
the
states.
For
instance,
in
1995,
the
maximum
state
benefits
for
both
temporary
total
disability
and
permanent
total
disability ranged
from
$817
in
Iowa to
S253
in
Missis-
sippi
(13).
In
29
jurisdictions,
permanent
total
disability
payments
were
at
least
100%
of
the
state's
average
wage,
although
in
10
states
the
payments
were
no more than
75%
of
the
average
wage
(13).
Although
the differences
among
states
in
workers' compensation
benefits
paid
to
workers
have
narrowed
significantly
in
recent
years
(as
measured
by
benefits
paid per
100,000
workers),
it
appears that the
primary
cause
is
a
substantial
reduction
in
benefits
paid
by
the
more
generous
states
rather
than
an
increase
in
benefits
paid
by
the
less
generous
states
(14).
Since
1976,
members
of
Congress
have
sought
to
renew
the
promise
of
fair
and
adequate
coverage for
occupational
injury
and disease
through
the
imposition
of
nationwide
standards.
Characteristically,
labor
and
employers
have
found
themselves
on
opposite
sides
of
this
issue.
Labor
has
vigorously supported nationwide
standards
as
a
way to
remove
the
inequities
and
injus-
tices
of
the
current
program,
and employers
have
tended
to
believe
that
states
can
resolve the
problems
without
national
interference
(9). In
the
past
few years,
after
escalating
costs
and
inadequate
benefits,
labor,
manage-
ment,
and
insurers
have
all
been
calling
for
major
reforms
(15).
In
the
past,
consensus
for
a
federal
solution
was
reached
only
after
a
work-related disease became
a
press-
ing
problem
for industry,
and then
the
solution typically
involved the
federal
government's
absorbing most
of
the
compensation
costs.
The
black
lung
program
is
a
promi-
nent example.
TRENDS
AND
COSTS
IN
COVERAGE
Although workers' compensation
programs
are
sup-
posed
to
provide
coverage
for
all
workers,
the
national
commission
found
that
15%
of
the
1972
work force
was
not
covered.
By
1980
the
percentage
of
uncovered
work-
ers
declined
to
around
10%
(16).
Workers who
are
not
covered
include
casual workers, some
small
business
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MWORKERS'
COMPENSATION
/
1711
workers,
domestic
workers,
farm
workers,
self-employed
workers,
and
state
and
local
government
workers.
It
is
estimated
that
in
1978
there
were
7.8
million
workers'
compensation
awards in
the
following
cate-
gories:
Medical
payments
Temporary
disability
benefits
Partial
disability
benefits
Permanent
total
disability
benefits
Death
benefits
'
6
million
1.3
million
0.42
million
2,600
7,800
Although
the
incidence
of
occupational
injuries
and
illnesses
originally declined after
the
passage
of
the
Occupational
Safety and
Health
(OSH)
Act,
from
10.9
cases
per
100
workers
in
1972
to
7.6
cases
per
100
work-
ers
in
1983,
it
has
edged
up
in
recent
years,
to
8.9
cases
per
100
workers
in
1992
(17).
Even
more
troubling
is
the
fact
that,
per
100
workers, the rate
of
injuries
involving
time
lost from
work-injuries
that
are
presumptively
more
severe-has
increased
by
approximately
20%
between
1972
and
1992,
and
the average
time lost
as
a
result
of
these
injuries
has
steadily
increased
over
the
period,
by
approximately
65%
in
total (6,17).
The
fastest growing category
of
occupational disease,
by
far,
has
been musculoskeletal problems resulting
from
cumulative or repetitive
trauma,
such
as
carpal
tunnel
syndrome
(6).
Of
the
368,000
new
cases
of
occupational
disease
reported
by employers
in
1991,
some
61%
were
cumulative or repetitive
trauma
cases,
up
from
18%
in
1981
(18).
In
that
year,
musculoskeletal disorders
accounted for 43%
of
all
occupational injuries and
ill-
nesses
reported
by
the
Bureau
of
Labor Statistics
(18).
Ignoring
musculoskeletal disorders,
only
5%
of
occu-
pational diseases
are
covered
by
workers'
compensation
programs
(16),
and
occupational
disease accounts
for
only
about
1%
of
all
workers'
compensation
claims
(15).
The costs
of
workers' compensation
have
been
escalat-
ing
since
the
national
commission's report
and
the
subse-
quent
state efforts
to
improve
programs.
In
1970,
total
costs
were
about
$4.9
billion; by
1978,
costs had
esca-
lated
to
$15.8
billion.
This
increase
was
due
to
inflation
in
medical
costs
as
well
as
to
improvements
in
coverage.
At
the
same
time
that payments
were
increasing
by
more
than threefold,
workers'
compensation
costs
as
a percent-
age
of
payroll
increased
by
62%, from
1.11%
to
1.80%;
60%
of
premiums
were
paid
out
in
compensation,
and
40%
were
used
to
pay
overhead,
legal fees,
and to
provide
a
cash
surplus
for
insurance carriers
(16).
After
the
mid-
1980s
workers' compensation
insurance
costs
were
driven
by
rising medical
expenses
rather
than
by
rising
cash
benefits
for
workers
(15).
From
1990
to
1993
alone,
the
medical
component
of
workers' compen-
sation
benefits
increased
from
40.9%
of
total
workers'
compensation
benefits
to
50%
(6).
By
1993,
workers'
compensation
programs cost
$57.3
billion,
up
from
$25.1
billion
in
1984,
and
the share
of
costs
paid
out
in
com-
pensation had
increased
to
73%
(19,20).
Meanwhile,
workers'
compensation
costs
as
a
percentage
of
payroll
rose
to
a
peak
of
2.40%
in
1991
and
then
dipped
back
slightly
to 2.30%
in
1993
(20).
Theoretically,
uworkers'
compensation
payments
are
intended
to
provide
for
two-thirds
wage
replacement
in
individual
cases.
In
reality,
however,
they
do
not
operate
this
way.
Total
lost income for occupational
disease
was
estimated
to be
around
S11.4
billion
for
1978,
and
since
at
most
3%
of
the
$15.8
billion
awarded
in
1978
was
for
work-related
disease,
nearly $11
billion
of
lost
wages
was
not
compensated
by
workers' compensation
programs.
If
one
considers
all
sources
of
compensation,
only
40%
of
the
earnings
lost
because
of
disease
is
compensated
in
individual
cases,
and
only
5%
of
the
compensation
is
pro-
vided
by
workers' compensation
programs.
The
remain-
der
comes
from
Social
Security,
welfare, pensions,
veter-
ans' benefits,
and
private
insurance.
Work-related
injuries
are covered
at
a
rate
of
about
60%,
the
majority
of
this
compensation coming
from
workers' compensation programs
(16).
The total
compen-
sation from
all
sources for wages
lost from work-related
injuries
averages
around
60%.
In
1980,
for workers
totally disabled by
disease,
the
average
lifetime compen-
sation
in
individual
cases was
$9,700,
which
is 12.6%
of
the
$77,000 they
would
normally
have
expected
in
adjusted lifetime earnings
(16).
In
very
few
individual
cases does
the
compensation
meet
the
two-thirds
wages
goal,
and
the
aggregate
figures
show
an even
more
dismal
picture.
Among
the
reasons for
failure
of
state
programs
to
cover
occupational
disease and
injury adequately
are
these:
Payments
are
subject
to low
ceilings.
No
cost-of-living
increases
are
provided.
Payments
for
severe
permanent disability
are
lower
than
those
for
temporary
disability.
There
are
restrictions
on
medical
care
services
and total
amounts
compensated.
Nonpecuniary
losses,
such
as
pain and suffering, are
never
compensated.
Many
occupational diseases
are
not
covered
at
all.
Ten
percent
of
all
workers
are
excluded
from
coverage.
An
additional complicating
factor
is
that
compensation
is
based
on
the
extent
of
disability
as
judged
by
physi-
cians.
This
arrangement
sets up
a
contest
between
the
worker and employer
to
find
physicians
who
will
provide
the
most
desired
judgments.
PROBLEMS
IN
OCCUPATIONAL
DISEASE
COVERAGE
The
problems
are
most
severe
for
occupational
disease
coverage. Workers'
compensation
programs
did
not
orig-
inally cover
work-related
diseases,
and
in
1972
only
41
ii""""
II
·
PII--··---·---"-----L

1712
/
CHAPTER
128
states
provided
a
reasonable range
of
coverage.
Even
today,
21
states limit
occupational disease
coverage
to
diseases
that
are
peculiar
to
or
characteristic
of
a worker's
occupation,
subject
to
review
by the
state
workers'
com-
pensation boards.
Injuries
resulting
from accidents were
the
focus
of
the
original
workers'
compensation
systems.
The
"risk
of
the
accident
had
to
be
peculiar
to
employment
or
not
common
to
the
general
public"
(21).
When
the
states
expanded
their
coverage to
include
occupational
dis-
ease,
they often changed
the
language
so
that
the
dis-
ease
itself
and
not
the
risk
of
the
disease
was
covered.
As
a
result,
in
many
cases,
coverage
is
limited
to
dis-
eases
peculiar
to
the
occupation
and
ordinary
diseases
of
life
are
excluded,
whatever
their
cause.
This restric-
tion
effectively
eliminates
coverage
for
much
occupa-
tionally related
disease.
The
burden
of
persuasion
for
establishing
the connec-
tion between workplace
conditions
and
disability
is
also
more
difficult
to
meet
with
occupational disease
(8).
Ill-
ness,
particularly
cancer and
other
chronic
diseases,
often
develops
many
years
after
exposure and
is
not
usually
traceable
to
exposure
in
the
workplace.
The
distinctions
between
disease and
accident
com-
pensation
are
striking.
Sixty
percent
of
all
disease claims
are
initially
denied,
while
only
10%
of
accident
claims
receive the
same
treatment
(5,8).
In
addition,
there
is
more than
a
1-year
average delay
in any
compensation
for
disease
victims
when
it
is
awarded.
Furthermore,
work-
related
disease
claims
are
typically
burdened
by
signifi-
cant
litigation
costs;
legal
assistance
is
required
for
77%
of
all
disease claims
but
only 24%
of
all
injury
claims.
Compensation
also
varies; in
1980
survivor death bene-
fits
averaged $3,500 for disease
victims
and
$57,500
for
injury
victims.
Finally,
workers'
compensation
claims
are
contested
at
an
average rate
of
60%
for
respiratory
dis-
ease,
55%
for
heart ailments,
and
only
10%
for accidents
(5,1
1).
The
majority
of
uncontested compensated
disease
claims
are
for
minor
ailments or problems readily appar-
ent
as
workplace
induced
(16).
As stated
earlier,
ordinary
diseases
of
life
are
usually
excluded from
coverage.
These
include
infectious
dis-
eases,
many
heart
ailments,
and
many
diseases
with a
work-related element. Work-related
diseases
are
not
gen-
erally
covered
by
workers'
compensation
for
several
rea-
sons.
One
reason
is
that very
often
occupational
diseases
have
multiple
causes, and
it
is
therefore
difficult
to
trace
the
cause
to
the
workplace.
A
second
reason
is
that
many
diseases
have
a
long
latency
period,
which
tends
to
obscure
the
precise
cause
of
the
disease
and
the
exact
place
of
employment
where
critical
exposure
occurred.
Problems
of
multiple
causation
and
latency
are
com-
pounded
by
statutes
of
limitations that apply
to
claims
in
most
states
(5).
There
are, in
addition,
jurisdictional
prob-
lems with
disease
victims
who
have
changed
jobs
during
the period
when the
disease
was
developing.
Moreover,
many states
have
set
minimum
exposure
requirements;
a
worker
must
be
exposed for
a
specific
time period
before
a disease can be
attributed
to
an
occupational cause
(21).
Finally,
a
major
reason
that
work-related
diseases
are
not
covered
by workers'
compensation
is
that
workers
and
medical personnel
often do
not recognize
that
a
disease
results
from
workplace
exposure. They
therefore
neglect
to investigate
a
particular
workplace or
occupation
as
a
potential
source
of
disease.
Cancer
and
respiratory
tract disease
compensation
deficiencies
continue to
be
a
critical
problem
today.
To
obtain
compensation for
occupationally induced
cancer,
workers
must
prove
that
the disease is
work
related,
and
the standard
of
proof
for this demonstration
is
difficult
to
meet
(8).
The
courts
have
accepted some cancers
as occu-
pationally
induced-mesothelioma
caused
by
asbestos,
leukemia caused
by
benzene,
and angiosarcoma
of
the
liver caused
by vinyl
chloride
are
three
that
are
increas-
ingly
recognized-but
other
job-related
cancers,
such
as
asbestos-induced
lung
cancer, are less
readily
accepted,
especially
if
the worker also
happens
to
have
been
a
smoker.
In meeting the
standard
of
proof
for
causation,
animal
models
are
not
sufficient
demonstration
that
a
cancer
is
occupationally related.
Only one
of
every
79
persons
who
dies
of
occupational cancer
in
the United
States
receives
workers' compensation
(8).
Even
a
nonneoplastic respiratory
tract
disease
such
as
byssinosis
(brown lung)
is,
for compensation purposes,
barely
recognized
as
occupationally
related,
even
though
studies
of
textile
workers
leave
little
doubt
about the
con-
tribution
ol
cotton-dust
exposure
to
byssinosis.
Self-insured
employers
are
subject
to
the largest
losses
from
successful
claims, and they
contest
at
a
higher
rate
than
other
employers.
From
the
viewpoint
of
employers
the
stakes are high:
permanent
disability from
occupational
disease accounts
for
only
5%
of
the
claims
but
50%
of
the
costs.
To
the extent
that
insurance carriers
respond
to
pres-
sure
from
employers
to
keep payouts
and,
hence, premiums
at
a
minimum,
occupational
disease
will continue to
be
excluded
as
much
as
possible.
It
is
also
true
that
insurance
carriers
(especially
noncompetitive carriers) who
operate
more or
less
on
a
percentage-of-cash-flow basis
do
face
a
counterincentive
to
include
occupational
disease
in
order
to
increase
profits.
Why,
then,
is
there
so
much
resistance?
The answer
probably
lies
in
the
fact
that
the occupational
disease
problem
is
already
large
and
threatens
to
become
larger
(given
the
history
of
exposure
to
harmful
sub-
stances)
and
in
the
great
uncertainty
involved
in
setting
premium
payments
for disease.
The
prospect
of
large,
uncertain
payouts
in
the future
would
discourage
any
sub-
stantial
increase
in
scheduled
payouts
for
diseases.
In
sum,
significant
scientific,
legal,
and
economic bar-
riers
exist
to
the
incorporation
of
occupational
disease
into
the
workers' compensation
system.
Other
avenues
to
make
the
victim
whole must
be
pursued,
at
least
as
sup-
plements
to
the
currently inadequate
state
programs.
II
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IIC
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WORKERS'
COMPENSATION
/
1713
ALTERNATIVE
COVERAGE
FOR
OCCUPATIONAL
DISEASE
There
are
two
additional
means by which
workers can
obtain payments
for
general
occupational
disease.
In
1980
the
Social
Security
Disability
Income Insurance
Program
provided
53%
of
the
compensation
to
occupa-
tional
respiratory
disease
victims,
and
it
was
their
major
provider
of
relief
(16).
Occupational
disease costs
this
program about
$2.2
billion
annually,
and
47%
of
all
dis-
ease-afflicted
workers received
some form
of
compensa-
tion.
Although
Social
Security
compensation
is
low, it
is
substantially
easier
to
obtain
than
workers' compensa-
tion: 83.6%
of
all
claims
are
allowed
on
initial
applica-
tion
(16).
Nevertheless,
workers
often
do
encounter
diffi-
culties
under
the
Social
Security
program, including
5-month
delays
in
payment,
restrictions
on recency
of
employment,
and
2-year
delays
in
Medicare
coverage.
The
second
means
is
third-party
liability
suits
brought
in
the
state
and
federal
courts.
These
are
suits
brought
against
manufacturers
of
harmful
substances that
an
employee uses
in
the
workplace.
Workers
are
generally
prevented from suing
their
employers
directly,
unless
the
employer
is
also
the
manufacturer. Through
this
system,
workers
are
able
to
bring
suits
against
manufacturers
or
suppliers
one
step
back
in
the
process. Conversely,
employers
who
purchased
the
harmful
substances
for
use
in
the
workplace
may
be
able
to sue
manufacturers
for
the
costs
of
employee
compensation.
Although third-party
suits
are
costly
for
employees,
they
are
appealing because they
provide
compensation
for
lost wages,
disfigurement,
medical and
legal
expenses,
and
pain
and
suffering.
On
average,
the
possible
awards
are
much
higher
than
standard workers' compensation
claims.
Product
liability
suits
can be
brought
for
three major
causes:
manufacturing
defects,
design
defects, and inad-
equate
warnings.
To
receive
recovery,
a
worker
must
show
an
injury,
a
manufacturing
or
design
defect,
and
a
causal link
between the
two.
A
manufacturer
can
use
the
following defenses
in
the
negligence
suit:
contributory
negligence,
assumption
of
risk,
and
misuse
of
the
product.
For a
suit
brought
under
a
breach
of
warranty,
a
manufacturer
may use
the
assumption
of
risk
and
misuse
of
the product.
However,
in
such cases,
"defendants
usually
escape
liability
only
when the
plaintiff
assumes
the
risk
by
voluntarily
and
unreasonably
proceeding
to
encounter
a
known
danger"
(21).
At
one
time,
product liability
suits
were
the
greatest
concern to machine
tool
manufacturers
and
were
con-
fined
to
injury
claims.
Because
of
the
reduction
in
third-
party
liability problems
that
would accompany national
standards,
machine
tool
manufacturers
are now
one
of
the
few
industrial
groups
that
support
national workers'
com-
pensation standards. The use
of
third-party
liability
suits
in
disease claims
is
well
established
in
the
asbestos
expo-
sure area and
is
now
being tested
in
other
areas
of
chem-
ical
exposure.
The
courts
have
been considering
several
issues with respect
to
worker
suits:
the
producer's
aware-
ness
of
effects,
the
severity
of
effects, the
user's
assump-
tion
of
risk,
and
the
technological feasibility
of
instruc-
tions and warnings. Unfortunately,
a
number
of
factors
also
limit recovery under this
system, including
statutes
of
limitation
and
the
expense
and
time
involved
in
obtain-
ing
recovery
through
private
legal
action.
These
suits
are
most
successful
where the link
between exposure
to
a
harmful
substance
and
occupational disease
is
acknowl-
edged
as
a
matter
of
science or medical
knowledge.
In
cases where the
link
is
weak
or
allegedly
complicated
by
other possible
causes, such
as
smoking
or drinking,
recovery
in
the
courts
meets
the
same obstacle
it
does
in
the
workers'
compensation
system-the
problem
of
causality.
Advances
in
epidemiology,
biologic
markers
(22),
and
improved
diagnoses
by
physicians
are
essential
to
the
recognition
of
occupational
disease
in
both
sys-
tems.
In
addition to
the
aforementioned
programs
to
provide
payment
to
victims
of
occupational disease in
general,
systems
may
be
designed
for
a
specific
disease. An exam-
ple
is
the
black
lung
compensation system enacted
by
Congress
in
1977.
This
system
operates
as
a
no-fault
mechanism
to
award
those suffering
from
black
lung
with
compensation
and
medical
care in
lieu
of
state
workers'
compensation benefits.
This
substance-by-substance
approach
arises
after
a
problem
has
reached
crisis
magni-
tude,
and
it
relies on
a
public
bailout
of
the
associated
industries. While satisfying
the
social goal
of
compensat-
ing
workers,
it
provides little incentive
for
prevention
of
future
harm
from new
hazards.
PROSPECTS
FOR
THE
FUTURE
Compensation
for
occupational
disease
will,
unfortu-
nately,
continue
to
be
a
problem that
is
addressed
inad-
equately
by
state
workers' compensation
systems.
The
Social
Security system
will
probably
continue
to
pro-
vide
assistance to occupationally diseased
workers.
In
terms
of
specific
diseases,
workers'
compensation
sys-
tems will never
cover
the
myriad
adverse
health
effects
caused
by
exposure
to
chemicals
in
general. Minimum
federal
compensation
standards would
improve
the
situ-
ation
for
many
workers,
and
private
lawsuits
may
bene-
fit
others.
However, by
and
large,
since
causality
remains
a
difficult
problem,
most
occupational
diseases
will,
sadly,
not
be
paid
for
by
the
employer,
by the
con-
sumer
of
that
employer's products,
or by
manufacturers
of
harmful
substances
(5).
Instead,
the
public
and
the
worker
will
continue
to
bear
the
burden. These consid-
erations
are one
more reason
why
a
strong federal regu-
latory
effort
to
limit
worker exposure
to
toxic
sub-
stances
is
needed.
_
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·
C(II-

1714
/
CHAPTER
128
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