Document Type

Article

Publication Date

1-18-2016

Abstract

This article repeats themes advanced in my address to the PBA Workers' Compensation Law Section on October 7 2015 as part of its centennial commemoration of the state's workers' compensation statute The workers' compensation statutes of Pennsylvania and of most other states emerged out of a remarkable period of cooperation between employers employees insurers and progressive reformers The statutes have been surprisingly durable surviving for more than a century and there is good reason to celebrate their effectiveness in remedying the scourge of workplace injury On that point Judge Torrey and I agree The workers' compensation statutes did not appear out of thin air They were in effect a product of the failure of both tort law and of various voluntary nonlegal measures created by private actors to combat inadequate compensation of injured workers The historical conditions under which the broad social consensus of the need for workers' compensation statutes developed were unique But driving the entire discussion were two factors which I contend are paramount First society writ large believed it had a moral obligation to remedy workplace injuries and accidents Second employers understood they could recoup the cost of mandatory workers' compensation participation by lowering wages I question herein whether these factors continue to hold true and if not whether the workers' compensation model will endure My question is informed by recent developments that are under national discussion In brief a number of employers are petitioning state legislatures to authorize employers to optout from coverage by workers' compensation statutes In lieu of statutory coverage employers would be permitted to substitute lightly regulated ÔÇ£alternative benefit plansÔÇØ I question whether these initiatives are prompted in some manner by a low wage economy in which the cost of mandatory workers' compensation benefits are not so easy to recoup I also wonder whether employer flight from the workers' compensation regime represents a kind of moral retreat from what had been thought an uncontroversial duty to provide workers with a safe workplace and with adequate remedies for injury I issue a warning although Pennsylvania has always done the right thing and may continue to want to do so a widespread ÔÇ£race to the bottomÔÇØ by states abandoning the workers' compensation model may test Pennsylvania's moral compass

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