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To understand better why policy makers found it difficult to break free of state- level control, we need to know how and when workers’ compensation laws were established. The passage of these laws in the early 20th century was part of a decades-long struggle to cope with the economic and social costs of industrial accidents (Weiss 1935; Dodd 1936; Somers and Somers 1954; Lubove 1986; Berkowitz 1987; Skocpol 1992; Fishback and Kantor 2000). During the 19th century, the problem of industrial accidents was handled by the courts, and prevailing legal doctrine was heavily biased in favor of employers. If the injured worker or a fellow worker were even slightly to blame, or if the injury could have been expected given the nature of the job, the injured worker could not recover damages in court. Seldom could workers overcome these defenses, so they bore the costs of industrial accidents. In some cases injured workers and their families became paupers who sought shelter in local poorhouses, thus shifting the burden to the larger community.

State legislatures began to restrict employers’ defenses in the middle of the 19th century, starting with railroad work and mining, two of the most hazardous occupations. By 1910, most states had abolished or substantially modified at least one of the major legal defenses favoring employers, and some had moved to a system of contributory negligence in which injured workers who were partly at fault could still recover some damages. The move to limit employers’ defenses was aided by some judges who interpreted the laws narrowly, claiming for instance that a foreman’s contribution to an injury was irrelevant because he was not a fellow worker. As employers’ defenses were reduced, they became more willing to purchase private accident insurance.

While these changes increased injured workers’ odds of winning in court, they proved unsatisfactory. For the majority of injured workers and their families, compensation still varied between too little and nothing at all. Those who managed to win in court often had to wait years from the time of injury to the time of payment.6 There was also the problem of inequity: two workers injured in similar circumstances might be treated very differently depending on the quality of their legal representation and the specific judge or jury they drew. In Minnesota, court awards for loss of an eye ranged from $290 to $2,700 in the early 20th century; for loss of a foot, the range was $50 to $3,000 (Somers and Somers 1954: 25). In her study of Pittsburgh, Crystal Eastman found that out of 235 fatally injured workers who left behind at least a wife and perhaps children as well, about one-quarter received no compensation at all and another quarter of the families received less than $100 (cited in Lubove 1986: 48). Nor were modifications of liability law sufficient to induce employers to make the workplace noticeably safer. “Industrial accident rates reached their all-time peak in the first decade of this [the twentieth] century. For example, in 1907 over 7,000 workers were killed in just two industries – railroading and bituminous coal mining” (Berkowitz and Burton 1987: 17).


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