Louise King Steiner.

Recent trends in occupational disease legislation (Volume BEBR Faculty Working Paper v.5, no.1) online

. (page 1 of 3)
Online LibraryLouise King SteinerRecent trends in occupational disease legislation (Volume BEBR Faculty Working Paper v.5, no.1) → online text (page 1 of 3)
Font size
QR-code for this ebook


LI E) RARY

OF THL

U N 1 VERSITY

or ILLINOIS

331.1
v\o. \-2.5



INSTITUTE OF




LABOR AND INDUSTRIAL RELATIONS



RECENT TRENDS
IN OCCUPATIONAL
DISEASE
LEGISLATION



NIVERSITY OF ILLINOIS



Editorial Note

The Institute of Labor and Industrial Relations was established in
1946 to "inquire faithfully, honestly, and impartially into labor-manage-
ment problems of all types, and secure the facts which will lay the
foundation for future progress in the whole field of labor relations."

The Institute seeks to serve all the people of Illinois by promoting
general understanding of our social and economic problems, as well as by
providing specific services to groups directly concerned with labor and
industrial relations.

The Bulletin series is designed to implement these aims by periodi-
cally presenting information and ideas on subjects of interest to persons
active in the field of labor and industrial relations. While no effort is
made to treat the topics exhaustively, an attempt is made to answer the
main questions raised about the subjects under discussion. The presenta-
tion is non-technical for general and popular use.

Additional copies of this Bulletin and others listed on the last page are
available for distribution.

W. Ellison Chalmers Milton Berber

Director Coordinator of Research

Donald E. Hoyt
Editor



I. L. I. R. PUBLICATIONS, BULLETIN SERIES, VOL. 5, NO. 1

(Formerly Series A)

UNIVERSITY OF ILLINOIS BULLETIN

Volume 48, Number 69; May, 1951. Published seven times each month by the University of
Illinois. Entered as second-class matter December 11, 1912, at the post office at Urbana, Illinois,
under the .Aft of August 24, 1912. Office of Publication, 358 Administration Building, Urbana,
Illinois.



Recent Trends in Occupational Disease Legislation

By Louise K. Steiner



A worker with an occupational disease has a much better chance of
receiving compensation today than he ever did before.

Amendments to state workmen's compensation laws and occupational
disease acts have enlarged the scope of these laws to include more
diseases, persons in more varied types of occupations, and larger monetary
benefits.

This has been the trend since World War II. Since then, our state
legislatures have moved to liberalize our state laws requiring employers
to compensate workers for occupational diseases. This trend grew steadily
through the forties and has become marked in the last few years.

Public concern about occupational diseases is not new. It goes back to
the first decades of this century when the causes and symptoms of such
diseases began to be recognized and corrected. Diseases of industrial
origin were first brought to public attention by social reform groups and
later by government agencies. Early attempts to meet the problem
through legislation were not continued, however, and many years passed
before occupational diseases again received attention from our law
makers.

Interest in this subject has been renewed in the last 15 years, and
much has been accomplished in that time. In 1936, only 20 states had
laws with occupational disease provisions — and nine of these provided
for only a few special diseases. By the end of 1950, 41 states had enacted
laws with occupational disease provisions. Of these, 24 give full coverage
and the other 1 7 have widened their coverage considerably.

Although developments in preventative legislation are of great im-
portance and are receiving increasing interest, this bulletin will concern
itself only with the subject of compensation of occupational disease.

SCOPE OF THE PROBLEM

Statistics are not a good indication of the proportion of occupational
disease cases in this country. However, even with only limited coverage
of disease, 60,000 cases of occupational disease were reported as com-
pensable in 1948.

And the majority of the diseases were never reported.

Statistics on occupational diseases are difficult to secure. No state is
able to furnish complete reports on the number of actual cases within
its borders.



Two major areas make it difficult to keep exact statistics on occupa-
tional disease. One is toxic exposure. A worker's health may be injured
beyond repair while the disease itself remains dormant and unrecognized
for a long period of time.

The other is the development of new industries with corresponding
new diseases. As long as new industries continue to arise, new health
impairments may result. Even as we learn to control older industrial
hazards through preventive techniques, new diseases will demand recog-
nition and compensation.

These are general areas which cloud the whole issue of occupational
diseases. Six more specific reasons, however, appear to make the statistics
less exact. They are:

1. The fact that many industries are not covered by existing laws.

2. The failure of some inexperienced doctors to recognize the diseases.

3. The reluctance of some informed industrial physicians to involve
their employers in law suits by reporting cases as occupational in
origin.

4. The disposition of some employers to settle workmen's claims
privately in order to protect the reputations of their companies.

5. The lack of awareness by both employer and employee of their
rights and obligations under the law.

6. The failure of many state laws to require adequate reports from
industrial hygiene agencies.

It is interesting to note that compensation data from such states as
Wisconsin, Massachusetts, Ohio, and New York — where occupational
diseases have been compensable for many years — do not show occupa-
tional health disabilities for industry to be more than S'^ of total occu-
pational disabilities.

However, even 3% of the 1948 national occupational injury total
amounts to 60,000 cases of disablement of one day or more each.

In Illinois in 1949, occupational disease cases were 1.2% of all re-
ported industrial injuries.^ And, during the 15-year history of the Illinois
Act, diseases of occupational origin have not exceeded 2% of the total
injuries. (See Table 1.)

The Bureau of Labor Standards points out the seriousness of the
problem in terms of human misery, loss in productive time, and money.^

NATURE OF OCCUPATIONAL DISEASES

The definition of occupational disease has been difficult both legally
and medically. Most authorities divide industrial diseases into four
classes:



Table 1. Comparison of Reported Occupational Disease Injuries to
Total Industrial Injuries Reported in Illinois, 1935-1949*



Year



Number or Cases
of Total
Injuries



Number of Cases
of Occupational

Disease

Injuries



Percentage of Occu-
pational Disease
Cases to Total
Injury Cases



1935


34.481


371


1.1%


1936


38.647


309


0.8%


1937


42,424


539


1.3%


1938


32,848


393


1.2%


1939


34,423


470


1.4%


1940


39,147


573


1.5%


1941


47.570


574


1.2%


1942


49,877


608


1.2%


1943


54,733


867


1.6%


1944


58,496


1144


2.0%


1945


54,638


1036


1.8%


1946


52,525


747


1.4%


1947


52,979


836


1.6%


1948


51,048


618


1.2%


1949


48,405


603


1.2%



* Adopted from Annual Report on Industrial Accidents in Illinois in 1948, Part I, p. 20.
1949 figures from Annual Report on Industrial Accidents in Illinois in 1949, Part I.



1. Diseases resulting from accidental injuries received during employ-
ment. Blood poisoning resulting from a wound sustained on the
job would be placed in this category.

2. Diseases which are generally acknowledged to be occupational in
nature. These are known to occur frequently in certain employ-
ments and to follow the use of certain materials. Dermatitis (skin
disease) contracted from work with cutting oils would be classed
in this way.

3. Diseases which occur neither as the result of an accident nor from
a definite occupation. Such diseases result from exposure and
could happen in a number of different occupations. Pneumonia
or the common cold would be classified in this way.

4. Diseases which develop slowly and are caused or increased by
physical and emotional strain. Gradual wear and tear to the body
may develop while an employee is performing an ordinary duty.
Heart attacks are good illustrations of these cases.

Legislation relating to these classes of disease varies among states. The
last two classes usually must be interpreted by the courts and are seldom
spelled out specifically in legislation.



State Law Definitions

Various state laws have defined occupational disease in different ways.
The problem of making occupational disease part of the cost of pro-
duction — without transferring to the employer and the consumer the
costs of a disease contracted by the workmen quite apart from his employ-
ment — is not an easy one to solve. Connecticut law states that "occupa-
tional disease shall mean disease peculiar to the occupation in which an
employee was engaged and due to abuse in excess of the ordinary
hazards of employment as such." The law of Indiana declares that "occu-
pational disease means a disease arising out of and in the course of the
employment. Ordinary diseases of life to which the general public is
exposed outside of employment shall not be compensable." Illinois legis-
lation adds to this definition that "disease must be incidental to the
character of the business and not independent of the relation of employer
and employee. The disease need not to have been foreseen or expected
but after its contraction it must appear to have had its origin in a risk
connected with the employment and to have flowed from that source as a
rational consequence."

A reasonably clear broad definition of occupational disease was
originated by the Supreme Court of Ohio when it declared : "A disease
contracted in the usual and ordinary course of events which from the
common experience of humanity is known to be incident to a particular
employment is an occupational disease."

Generally, then, to satisfy most states' requirements certain condi-
tions must be met :

1. The disease must have its inception in the employment.

2. The hazard must distinguish the occupation from the usual run
of industry.

3. The hazard must have identifying characteristics.

4. A causal or generally recognized relationship must exist between
the hazard and the disease.

5. The disease must be determined by an official administrative
agency.

Health Hazards

It is impossible in the space of this bulletin even to summarize the
medical aspects of the diseases or to enumerate the variety of diseases
which would fall under the above definition.

In general, it is possible to say only that occupational diseases are
caused by three types of health hazards: chemical, biological, and en-
vironmental. Chemical hazards directly attack the worker's body in the



Table 2. Occupational Disease Injuries in Illinois in 1949,
by Cause of Injury*



Cause Number of Cases Percent of Total

Total 603 100.0%

Skin irritants' 345 57.2%

Compressed air 79 13.1

Dusts^ 52 8.6

Repeated motion, pressure, shock, etc. 51 8.5

Industrial poisons' 50 8.3

Infections^ 14 2.3

Other diseases 12 2.0

' Skin irritants consisted largely of cutting oils and cleaning compounds.

- This includes 44 cases of silicosis.

' Industrial poisons included 21 cases resulting from lead and its compounds.

"* Includes 9 cases of undulant fever among packing house workers.

* Adapted from Annual Report of Industrial Accidents in Illinois in 1949, Part I, p. 43.



form of poisons, dusts, and corrosives. Biological hazards may take the
form of infections caused by viruses or germs such as anthrax, tuberculosis,
and many others. Fungi and parasites also fall in this class. The third
group, environmental conditions of exposure, can be brought on by
excessive noise, radioactive materials, vibration, or extreme temperatures.
These factors are occasionally interacting. Dust attacking miners'
lungs and predisposing them to a particular type of tuberculosis, called
silicosis, is an example of such a combination of factors. Poisoning which
results in occupational cancer is another illustration.

Frequency and Compensation

A great deal can be done in these areas through simple preventive
techniques. Although at one time lead poisoning w^as reported more fre-
quently than any other occupational disease, it has been controlled in
recent years. Skin irritants now account for the largest proportion of
industrial disease. Over 50% of all reported diseases in all states are
caused by skin irritants. The Annual Report of Industrial Accidents in
Illinois in 1949 shows that skin irritants are responsible for 57.2% of all
reported occupational diseases and that compressed air is responsible for
13.1%. (See Table 2.) More cases of occupational disease arise in
manufacturing in Illinois than in any other industrial group. (See
Table 3.)

These statistics cover up many of the most important aspects. Skin
irritants, for instance, are in general of a less serious nature than diseases



CHART I



CAUSES OF AND PAYMENTS FOR CLOSED CASES
OF OCCUPATIONAL DISEASES IN ILLINOIS IN 1949*



57.7%



SKIN !•:•:•:•:•:•;.

IRRITANTS m^^>:<r<<>:^:ym 26-6 %

^ 14.6%

COMPRESSED ^^<<<

AIR m '•8''



REPEATED



8.4%



MOTION, ETC. yy.



: 2.8%



^"^) 5.5%
INDUSTRIAL r..'!::::.:.-

••••.•.•."I'M-! fl O «/

POISONS v:::::::::::- °'^ ^"^



DUSTS



8.2%



x 45.6%



\ 2.8%
INFECTIONS •:•:•:•:•: ^'^'^



OTHERS



«2.8%

il

^x^: 3.7%



Percentage of
Total Disease

Percentage of

Total Compensation Paid

^ Includes all cases of silicosis and tuberculosis.
* Source: Annual Report on Industrial Accidents
in Illinois in 7 949, Part II, p. A-20.



Table 3. Occupational Disease Injuries Reported in Illinois
in 1948 by Industrial Group*



Industry Group




Number of Cases


Percent of Total


Total all industries




618


100.0%


Manufacture




353


57.1%


Construction




156


25.2


Wholesale and Retail Trade


47


7.6


Service Industries




29


4.7


Transportation and Public


Utilities


20


3.2


Mining and Quarrying




5


0.8


Finance, Insurance, and Real Estate


4


0.7


Agriculture, Forestry, and


Fishing


4


0.7



* Adapted from Annual Report of Industrial Accidents in Illinois in 1948, Part I, p. 41.
1949 figures according to industrial groups not available.

such as silicosis or poisons taken into the body through inhalation or
ingestion. They usually result in temporary rather than permanent
injuries or fatalities, and the percentage of total compensation allotted
them is comparatively lower than the latter categories.

When compensation payments in Illinois are analyzed, it is found
that although dusts account for but 8.2% of the total number of occupa-
tional disease cases closed in 1949, these cases receive 45.6% of the com-
pensation payments. Industrial poisons result in 5.5% of the total number
of cases closed, but the victims receive 18.5% of the total compensation
benefits; while persons suffering from skin irritants, the largest disease
group, take but 26.6% of the total compensation. (See Chart I.)

DEVELOPMENT OF OCCUPATIONAL
DISEASE LEGISLATION

Workmen's compensation, the first type of social insurance to be
developed through legislation in the United States, rests upon the theory
that the consumer of economic goods should bear the complete cost
incurred in the production of these goods. Compensation for industrial
disease is based on the same principle. This idea, sometimes called the
doctrine of occupational risk, holds that a worker should not be forced
to bear that part of the cost of the finished product which is represented
by his wage loss and by additional medical expenses stemming from
occupational disease. However, the identification of slowly developing
diseases with causal conditions is more difficult than the perception of
the immediate relationship between injury and its cause. It is more



difficult for a worker or his doctor to realize that skin cancer had its
origin on the job than to perceive that an open wound was caused by a
machine without safety guards. Consequently, industry's responsibility for
occupational disease has not always been recognized. Even today it is
sometimes not fully appreciated.

Common Law History

The tardiness of occupational disease legislation has sometimes been
explained in terms of the absence of a history of cases under the common
law as well as by the difficulty of defining causes and symptoms. Work-
men's compensation, in contrast, has a quite different history. By the
end of the nineteenth century, it was well established by court decisions
in both England and America that the employer was responsible for the
injury or death of an employee resulting from a negligent act by the
employer. This precedent was used in experimentation with employer's
liability laws and then in the formulation of workmen's compensation
laws. No such precedent existed for occupational disease legislation since
medical science had not yet reached the point where it could easily
diagnose such illnesses, and the causal connection between working
condition and industrial disease was hidden.

The mechanization of the factory system brought about increased
industrial accidents at the same time that it widened the distance between
employer and employee by increasing the size of the establishment. An
injured employee, forced to resort to the justice of the common law,
found it a long expensive process he was frequently unable to afTord.
Successful defenses had been developed for the employer against personal
injury suits. These took three forms: Contributory Negligence, Assump-
tion of Risk, and the Negligent Acts of Fellow Servants. The defense of
contributory negligence provided that even if an employer was guilty
of negligence, he was not liable if the injury was due wholly or in part
to the employee's own negligence. The doctrine of assumption of risk
stated that when a worker accepted a job, he assumed the ordinary risks
of that job. The fellow servant rule exempted the employer from responsi-
bility if the employee was injured through the negligence of another
worker. In the great majority of cases, at least one of these defenses was
applicable. Most workers did not appeal to the courts, since the outcome
was so uncertain and law suits were expensive and time-consuming.

In the first decade of this century efforts were made to eliminate or
change these defenses used under the common law by the enactment of
employers' liability laws. These laws, passed by state and Federal govern-
ments, abolished the use of one or more of the common law defenses.
However, although the possibility of winning a case was greatly increased

10



for the workman, he still was unable to secure compensation at many
neccssar)' times. His inability to afford fees for lawyers or to wait the time
rccjuired for the settling of a claim made the new laws still unsatisfactory.

First Workmen's Compensation Law

In 1910, public agitation over this situation brought about the enact-
ment of the first workmen's compensation law of general application.
Today, in all states in which workmen's compensation and occupational
disease acts allow the employer to decide for himself whether he wishes
to be covered, those employers who do not elect to come within the law
are refused the use of the three common law defenses. Only when an
employee elects to remain outside the law can an employer have recourse
to these traditional defenses. These stages in the development of our
present day legislation are still significant to us today. It was not until
1948 that the forty-eighth state, Mississippi, passed a workmen's compen-
sation law. In states without occupational disease coverage or in states
with employment exemptions, some of these laws still exist in various
transitional forms.

Disease Provisions

None of the early workmen's compensation laws contained specific
provision for industrial diseases. Although one state (Illinois) passed an
occupational disease law in 1911, there were only 20 states with provisions
for disease by 1936, and 28 by 1944. Some early court decisions, however,
held that existing w^orkmen's compensation laws included compensation
for occupational disease. The Massachusetts Court, for instance, early
stated that the provision for a "personal injury arising out of and in the
course of employment" was broad enough to cover occupational diseases.^
Although a few states followed this dicision, most did not and workers
were forced to resort to the inadequacies of the common law for relief.
Since 1944, there has been a marked development in occupational disease
legislation. By the end of 1950 only seven states did not have such
legislation. (See Chart II.)

History of Illinois Act

The passage of occupational disease legislation has a long and
interesting history in Illinois. The first Occupational Disease Act in
Illinois was passed in 1911. This act, which was amended in 1923, was
declared unconstitutional in 1935. A new act granting full coverage was
drafted in 1936 by a joint committee representing the state administra-
tion, organized labor, and organized employers. This bill, approved by

11

OF iU. LIB.



CHART II


incre;


\SE IN COVEF


lAGE




NUMBER
OF STATES

AQ


FOR OCCUPATIONAL DISEASE*


46 —












44 —












42 —
















v:|x;:j:|:j:|x|:::;:::;::x::


40 —


v:x:j:j:;:ix|xj:|:|x|:j:j:


38 —


ivSxjijxjxjxjxjxjx;


36 —








:S-:¥:SSSSS::S


34 —








I'**I"!*i*!'!\"!'!'i\*!\"!*!*!*"'!


32 —








*•*•*•'•'. '.■.'•*.'.*i '.*.'. ".'.•,*.'


30 —








;




28 —


*•*••»'. ".•.•.'.'.*.'.•.•.•.'.". '.'.•. •




26 —




;•:•:•:•:•:•:•:•:•:•:•:•:•:•:•:•:::::• x-:-:-:-:":-:-:-:-:':-:-:-:':':-^


24 —














22 —




20-:::::::::::::;x^^^^^^^^^^^^^^


g::§j:|:||||||: 1 111^^^^^^^^^^^^^^


1 8 — •:i:|:i:i:;:i:i:;:;:i:i:;:i:|:j:;:i:i








16 — •:::::::::::::::::::;:;:;:!:;:;:!:!:!




14- giggg^^^^^^


WmmlKmMI


12- ggjigg^^^^^^^


WKmS^M


10— ■:":'" - ;-:-^^^^^^^^


mmrnSS^


8 —


^^^^M


6—;

<


WKlmmm


<
4 —


^mmt^^m


2 —













YEARS



1936



1944



1950



NO
COVERAGE



SCHEDULE
COVERAGE



FULL
COVERAGE



* Does not include territories.



all parties prior to its introduction into the 59th General Assembly, met
with no opposition/

There is no longer any public question about the importance of
making special provision in legislation for occupational diseases. Both
management and labor agree that compensation for disease should be
provided. The problem is that of making the laws effective in meeting
the needs of the people. Controversy exists over the best provisions for
achieving this goal.

Although this bulletin is concerned only with state legislation, it
should be noted that Federal laws afford some protection to certain
groups of workers. Railroad workers, Federal employees, and longshore-
men and harbor workers are fully covered for occupational disease by
Federal laws.

RECENT TRENDS IN OCCUPATIONAL
DISEASE LEGISLATION

In the last few years, most state legislatures have moved to liberalize
their provisions for occupational diseases. In most states, this was done by
amending workmen's compensation laws; in those states having separate
occupational disease acts — Arizona, Colorado, Illinois, Indiana, Iowa,
Pennsylvania, Utah, and South Dakota — it was done by changing
these laws.

The U. S. Bureau of Labor Standards has pointed out that years of
experience with workmen's compensation laws have shown that pro-
visions of some state laws work better than corresponding provisions
found in other state laws and that "advances made in some areas show
the practicality of improvements elsewhere."^ No workmen's compen-
sation law is perfect nor are the needs of any two states identical.

Although this bulletin is concerned with the problem of occupational
disease provisions, it is still necessary to consider those aspects of work-
men's compensation laws which apply to industrial diseases. Six general
areas seem important : ( 1 ) coverage of diseases, ( 2 ) coverage of persons
and employments, (3) benefit payments, (4) medical care, (5) adequacy
of administration, and (6) security for payment.

Coverage of Diseases

The most important and easily recognized trend has been toward full


1 3

Online LibraryLouise King SteinerRecent trends in occupational disease legislation (Volume BEBR Faculty Working Paper v.5, no.1) → online text (page 1 of 3)