Who Benefits More – Employer or Employee?
Every year a debate in work comp crops up about whether or not employers derive a benefit from the “exclusive remedy” – a principle that a worker gets no-fault comp, but loses the right to sue for negligence. The debate goes back and forth about who benefits more and seems to assume that the purpose of the exclusive remedy was to benefit the employer, the employee or both. [WCx]
Has More to Do with History than Who Benefits More
In fact, the true purpose has to do with darker underlying forces in the history of the Employers’ Liability laws which preceded comp. The best historian of the Employers’ Liability laws and the reason for their demise was Clarence W. Hobbs, the first head of NCCI and, in the late 1930s, the author of several books on the history of early work comp laws and the demise of Employers’ Liability.
Attorney Contingency Fees Main Trigger in History of Work Comp
The reason for the exclusive remedy was, as will soon be clear, lawyers and contingency fees. Contingency fees (no recovery, no fee) were only accepted grudgingly in US law because, it was correctly believed, that it gave the attorney every reason to exaggerate and manufacture disability.
The contingency fee, however, gave the large communities of recent immigrants, working in the most dangerous jobs, access to a lawyer which would have been impossible if they had to pay a fee, win or lose, upfront.
However, the entire system of contingency fees contained to effective checks on abuse. Cases were openly solicited (read “manufactured”) by “runners”, local bilingual immigrants who fed potential clients to lawyers, for a set finder’s fee. Hobbs described both the runners and lawyers as “a noisome horde of ambulance chasers”. Soon, the courts agreed.
Courts Overcrowded with Ambulance Chasing Claims
The integrity and credibility of courts, judges, juries and verdicts was plunging and the courts themselves, previously rather staid, were becoming packed with mobs of litigants on Employers Liability negligence claims. Waiting in the wings as an alternative was one feature of European and British social law – Workmen’s (sic) Compensation. (The genderless “Worker’s” was a feature of the 1970s.)
Prime Mover to Work Comp was Civil Courts
The prime mover for the change from negligence to worker’s comp was the civil courts. Any benefit to worker or employer was an unintended consequence, although there was no shortage of volunteers to claim the credit. In fact, both employer’s groups AND unions simultaneously boasted of their roles. [WCx]
Has anything really changed? Contingency fees, a fundamental fixture in work comp, were actually not intended to be part of comp, but they gradually crept back in because the US in the 1930s, alone in the world, assumed they had always been there and made sense.
Clarence W. Hobbs, however, strongly disagreed.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their worker’s compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.
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