Professor Michael C. Duff's law review article "Reverberations of Magna Carta – Work Injuries, Inkblots, and Restitution" presents a scathing indictment of America's workers' compensation system. His central argument: workers have been "unconstitutionally undercompensated" for over a century, creating what amounts to a constitutional crisis hiding in plain sight.
The System's Critical Weaknesses
The most shocking examples come from states like Kansas, where an 18-year-old worker who becomes permanently disabled receives a lifetime maximum of just $155,000 – roughly $3,163 per year over a 49-year career. This falls far short of the original promise that workers' compensation would provide an "adequate" substitute for tort lawsuits.
The Partial Disability Problem
Originally, partially disabled workers received benefits based on actual wage loss for the full duration of their injury. Today, most states use arbitrary "schedules" – a worker might receive 222 weeks of benefits for a shoulder injury with no clear rationale for why 222 weeks compensates for lost earning capacity.
Occupational Disease Coverage Gaps
Perhaps most troubling is the virtual non-coverage of occupational diseases. While 120,000 workers die annually from work-related diseases (compared to 5,486 from workplace accidents), proving causation remains nearly impossible under current legal standards. The AFL-CIO estimates that workers' compensation covers less than half of occupational disease deaths.
Comparison of Workplace Injury Remedies
Timeline: Workers' Compensation Development
1900s-1910s: The Grand Bargain Era
- Early 1900s: Industrial accidents surge, tort system proves inadequate
- 1908: Federal employees get workers' compensation
- 1911: Wisconsin passes first comprehensive state workers' compensation law
- 1917: Supreme Court upholds workers' compensation in New York Central R. Co. v. White
1920s-1950s: System Expansion
- 1920s: Most states adopt workers' compensation laws
- 1930s: Labor organizing drives criticize management safety practices
- 1950s: All states formally cover occupational disease
1960s-1970s: Reform Pressure
- 1969: Federal Coal Mine Health and Safety Act addresses black lung
- 1970: Occupational Safety and Health Act (OSHA) created
- 1972: National Commission finds workers' compensation inadequate
- 1972: Black Lung Benefits Act passed
1980s-Present: The Erosion
- 1980s: States begin cutting benefits, restricting coverage
- 1990s-2000s: "Race to the bottom" accelerates
- 2010s: Firefighter cancer presumptions begin spreading
- 2020s: COVID-19 presumptions emerge, then largely disappear
Constitutional "Inkblot" Theory
Duff's most provocative argument centers on constitutional "unenumerated rights" – what failed Supreme Court nominee Robert Bork called constitutional "inkblots." The Ninth Amendment states that "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Duff argues that workplace injury remedies represent fundamental rights protected under this constitutional "inkblot," particularly given their deep roots in Anglo-American law dating to Magna Carta. The Fourteenth Amendment's Privileges or Immunities Clause may provide additional protection, as the 39th Congress specifically intended to protect citizens' fundamental rights from state interference.
Modern Solutions and Innovations
Legislative Presumptions
States have begun creating "presumptions" that certain diseases are work-related:
- Firefighter cancer presumptions: Now exist in most states
- COVID-19 presumptions: Temporarily adopted during pandemic
- These shift the burden of proof from worker to employer
Labor Law Disruption
Duff identifies significant untapped potential in collective bargaining:
- Section 7 of the National Labor Relations Act protects concerted activity over safety
- Workers can refuse dangerous work under federal protection
- Safety and workers' compensation are "mandatory subjects" of bargaining
- "Carve-out" agreements can supplement state workers' compensation
The UPS-Teamsters Victory
The 2023 UPS-Teamsters contract provides a powerful example, securing air conditioning for delivery trucks after thermometer readings reached 150°F. This victory occurred despite OSHA's failure to enact heat safety standards.
Key Takeaways
- Constitutional Crisis: Workers' compensation may violate fundamental constitutional rights to adequate remedies for wrongful harm.
- Systematic Underdeterrence: Inadequate benefits fail to incentivize workplace safety, shifting costs to workers, families, and taxpayers.
- Occupational Disease Crisis: The system essentially ignores the 120,000 annual deaths from work-related diseases.
- Labor Law Solutions: Unions possess significant untapped power to address safety and compensation through collective bargaining.
- Political Action Works: Firefighter presumptions and COVID presumptions demonstrate that organized pressure can overcome "impossible" causation standards.
- Restitution Framework: Workers should demand restitution for a century of unjust enrichment by employers.
Critical Assessment
While Duff's constitutional argument is creative, it faces significant practical hurdles. Courts have historically deferred to legislative judgment on workers' compensation adequacy. The "inkblot" theory, though intellectually appealing, lacks the concrete precedential support needed for immediate legal victories.
More promising are his labor law insights. The UPS-Teamsters victory demonstrates how collective bargaining can achieve safety improvements that regulation cannot. Similarly, the spread of presumption laws shows how organized political pressure can overcome seemingly insurmountable legal obstacles.
The article's strength lies not in providing immediate legal solutions but in reframing workers' compensation as a moral and constitutional crisis that requires urgent attention. Whether through constitutional litigation, collective bargaining, or political organizing, Duff makes a compelling case that the current system represents a fundamental betrayal of the social contract between workers and society.
The question remains: Will workers and their supporters take action now to compel the necessary change to the workers' compensation system, or will it take another century of inaction?
Duff, Michael C., Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution (August 16, 2024). Forthcoming, Northeastern University Law Review, Spring-May, 2025, Saint Louis U. Legal Studies Research Paper No. 2024-09, Available at SSRN: https://ssrn.com/abstract=4956400 or http://dx.doi.org/10.2139/ssrn.4956400
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