“The Promise” made in 1911, with the adoption of the compensation system, is now past history. The demands
of the globalized marketplace have eroded the fortress of workers’ compensation that
protected the rights, safety and lives of American workers.
Dynamic developments, occurring at an ever increasing pace, have altered
the landscape and accelerated a devastating attack on the citadel of
workers’ compensation. The root of the cause is economic.
Repeated over and over, in jurisdiction after jurisdiction,
is a common theme, reform/elimination of the workers’ compensation system to
merely increase an economic advantage over other businesses, other states and
other nations. The “system” has become the scapegoat.
Blessed by Madison Avenue marketing concepts, legislators
and public are sold on simple catch phrases that grab the mind set of voting
constituencies. Common marketing elements of “fraud” and “complexity” pervade
the advertising campaigns. The workers’ compensation system is being dismantled
piece by piece, until it effectively needs replacement.
Skipping ahead from the past decades of statutory and
regulatory changes, the assault has now moved to the final step of elimination,
which is embodied in the Oklahoma Opt-Out legislation enacted last week. The
law replaces the traditional workers’ compensation system with mandated ERISA
benefits and arbitration, and providing for a promised economic incentive of a projected 50%
cost savings.
In 1960 a dynamic change in law was the focus of an article by Dean William Prosser of Emory University, who wrote, "The Assault Upon the Citadel," 69 Yale L.J. 1099 (1960)], describing that the citadel of privity was attacked as a barrier to products liability cases. Ultimately what followed was, Prosser, "The Fall of the Citadel," 50 Minn. L. Rev. 791 (1966). See also, Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (1961).
That change in the law provided great benefits in establishing safer products and improving the lives and health of the nation. Furthermore, it elevated the quality of American products worldwide.
In 1960 a dynamic change in law was the focus of an article by Dean William Prosser of Emory University, who wrote, "The Assault Upon the Citadel," 69 Yale L.J. 1099 (1960)], describing that the citadel of privity was attacked as a barrier to products liability cases. Ultimately what followed was, Prosser, "The Fall of the Citadel," 50 Minn. L. Rev. 791 (1966). See also, Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (1961).
That change in the law provided great benefits in establishing safer products and improving the lives and health of the nation. Furthermore, it elevated the quality of American products worldwide.
The ongoing attack on the citadel of workers’ compensation leaves
the American worker without traditional protections upon which this democracy
was so successfully built. Left out of the proposed equation are the injured American
worker and his or her family. To maintain the critical balance of the needs of
Industry, Labor and the national interest, a more creative approach is necessary, and hopefully will be advanced.
