Reflections on the National Commission on State Workmen’s Compensation Programs: An Interview with John F. Burton, Jr.

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

The Commission’s findings are as relevant today as they were 50 years ago.

The Occupational Health and Safety Act of 1970 (Act) was signed into law on December 29, 1970, by President Richard M. Nixon. The Act, a truly bipartisan measure, was intended to ensure that all workers in the nation would have safe and healthful working conditions. It created the Occupational Health and Safety Administration (OSHA) and gave OSHA the authority to set and enforce workplace health and safety standards. A sometimes overlooked, but equally significant part of the Act, was its creation of the National Commission on State Workmen’s Compensation Laws (“Commission”). The Commission, a presidential advisory group comprised of representatives from business, the insurance industry, unions, law, medicine and academia was charged with evaluating whether state workmen’s compensation programs were adequately serving injured workers, and to present their findings to President Nixon and Congress. The Commission was given one year to complete its inquiry and prepare its final report. Under the leadership of John F. Burton, Jr., an academic and renowned expert in the field of workers’ compensation, the Commission issued its report on July 31, 1972.

The Commission concluded that state programs were neither adequate nor equitable. Its report set out five core objectives for state workers’ compensation programs. First, that there should be broad coverage of nearly all employees. Second, that a worker should be compensated if injured and should receive sufficient benefits to replace their wages. Third, injured workers should get the medical care they need and should receive assistance to facilitate their return to work. Fourth, that workers should be provided with a safe workplace that prevents injuries from happening in the first place. Fifth, that injured workers should receive benefits and medical treatment in a timely and efficient manner. The Commission’s report made 84 recommendations, 19 of which it deemed to be essential. Key among those essential recommendations, the Commission endorsed compulsory rather than elective coverage, with no exceptions for small firms or government; full coverage of occupational diseases; adequate weekly cash benefits for temporary total disability, permanent total disability and death benefits, with such weekly benefits being subject to a maximum benefit set at two-thirds of the state average weekly wage by July 1, 1973 and 100% of the state average weekly wage by July 1, 1975; no maximum or arbitrary limits on the amount and duration of permanent total disability indemnity and death benefits; and full medical and rehabilitative services without statutory limit on dollar amount or length of time. Unable to reach agreement on whether its recommendations should immediately become Federal standards, the Commission instead recommended that states be given three years to reform their laws before its recommendations were adopted as Federal mandates. Ninety days after the submission of its report, the Commission was dissolved. The 19 essential recommendations endorsed by the Commission never became Federal standards.

In the years immediately following release of the Commission’s report, there was impressive compliance among the states with the Commission’s recommendations. However, compliance waned in the late 1980’s and 1990s as concerns over employer costs and the rise in medical expenditures became predominant. These pressures gave rise to cuts in worker benefits and what has been described as a “race to the bottom.” State legislatures were convinced that any increases in employers’ workers’ compensation costs that might occur as the result of worker benefit increases would cause employers to relocate their businesses to other states with less generous workers’ compensation programs.

In 2015, the Department of Labor (DOL) renewed its interest in the status of state workers’ compensation programs and initiated a study to determine whether state programs were fulfilling their obligations to injured workers. That report, “Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers” (“DOL report”), notes that state-based workers’ compensation programs are a critical part of the social safety net that provide necessary support to workers who are injured or made sick by their jobs, yet they are the only major component of the social safety net with no Federal oversight or minimum standards. The report confirms an increasing lack of compliance among state programs with the Commission’s essential recommendations to the point that workers are at great risk of falling into poverty as the result of a work-related injury and the failure of state workers’ compensation programs to provide them with adequate benefits. Among the policy options recommended by the report was whether to increase the role of Federal oversight over state programs by the creation of a new National Commission to study state programs and establish Federal standards that would trigger increased Federal oversight if state programs fail to meet those standards. That recommendation was not acted upon.

July 31, 2022 marked the 50th anniversary of the release of the Commission’s report. To mark the anniversary and the consensus-based contributions the Commission made to our understanding of the components of an adequate and equitable workers’ compensation program, LexisNexis conducted an interview with John F. Burton, Jr., Chairman of the National Commission on State Workmen’s Compensation Laws. We were fortunate to have the opportunity to discuss such a timely and important matter with one of the most distinguished experts in the field of workers’ compensation. Dr. Burton’s insights, observations, and conclusions are simultaneously thoughtful and thought-provoking. We share the interview with you.

Interview with John F. Burton, Jr.

1. After a very impressive year of research, discussion and debate, the National Commission on State Workmen’s Compensation Laws (Commission) reported, “Our intensive evaluation of the evidence compels us to conclude that State workmen’s compensation laws are in general neither adequate nor equitable.” If we could transport the Commission forward in time today, do you think it would reach the same conclusion?

Yes, I think the Commission would reach the same conclusion—that state workers’ compensation (WC) laws are in general neither adequate nor equitable—but for somewhat different reasons.

In recent years, I have distinguished among three components of WC: (1) Coverage of workers and/or employers; (2) Compensability, which involves the legal rules used to decide if a covered worker’s injuries or diseases are compensable; and (3) Benefits—cash and medical—received by the disabled workers. I will focus on Compensability and Cash Benefits in this answer.

Compensability

There are two reasons why a new Commission would be highly critical of compensability in the current state WC programs.

First, the Commission made 19 essential recommendations for a modern WC program, but the only one dealing with compensability was R2.13. “That all states provide full coverage of work-related diseases.” The Commission relied on a Department of Labor (DOL) table to conclude that 41 of the 50 states met this standard as of 1972.

The notion that most states provided full coverage of occupational diseases was shattered within a few years based on research by Peter Barth, Allan Hunt, and others, and by the work of the Interdepartmental task Force, which was established by the Ford Administration.

There are now data indicating that most occupational diseases and deaths are not compensable by state WC programs.

Second, the most disturbing development in WC programs the last 50 years has been the increasingly stringent compensability rules. Emily Spieler and I (2012) wrote an article comparing the difference between the number of disabled workers and the number of workers who qualify for WC benefits, and Emily wrote the definitive examination of this topic in a recent article in the Rutgers University Law Review (2016). A particularly pernicious example of tightening compensability rules is what I call the “dual denial doctrine.” States laws that (1) tighten eligibility requirements so workers no longer qualify for WC benefits and (2) deny workers the right to bring tort suits for the injuries that previously qualified for WC benefits. This doctrine is hard to reconcile with the fundamental bargain in WC: workers qualify for benefits using the no-fault rules of WC, and in exchange employers provide WC benefits that are less than the likely damages from a tort suit.

Cash Benefits

The 19 Essential Recommendations of the Commission contained 9 dealing with cash benefits for temporary total disability (TTD,) permanent total disability (PTD), and death benefits. A significant development in the last fifty years is the difference between these three types of cash benefits and permanent partial disability (PPD) benefits.

TTD, PTD, and Death Benefits

The most common type of cash benefits is for TTD. The TTD benefit for an injured worker is (1) a percent (such as 66 2/3%) of the worker’s preinjury wage, or (2) the weekly maximum benefit in the state (such as 100 percent of the State Average Weekly Wage [SAWW]), whichever is less.

As of 1972, the TTD maximum weekly benefit was less than two-thirds of the SAWW in 40 states. The Report compared the maximum TTD weekly benefits as of 1/1/72 with the 1971 poverty level for a nonfarm family of four persons, which was $79.56 a week. The TTD maximum weekly was less than this poverty level in more than half the states.

Essential recommendation R3.8 stated (in part) that the maximum TTD benefits should be at least 100 percent of the SAWW.

The number of states in compliance with R3.8 was 1 in 1972. The number of complying states then increased sharply to 30 in 1980, followed by continuing increases to 31 in 1990 and (using a different methodology) 39 in 2022.

There were also lasting increases in the average number of states’ compliance score for the other eight essential recommendations dealing with cash benefits. These great increase in the adequacy of TTD, PTD, and death benefits are a continuing consequence of the Commission’s Report.

PPD Benefits

One serious gap in the report is the absence of essential recommendations for permanent partial disability (PPD) benefits.

Two significant developments after the Commission’s report are critical to understanding the adequacy of PPD benefits in 2022.

First was the Study of Benefit Adequacy published by the National Academy of Social Insurances (NASI) (Hunt 2004) that endorsed a test for the adequacy of PPD benefits, namely that the benefits should replace 66 2/3% of lost wages resulting from workplace injuries.

Second, the other significant development since 1972 is that the methodology for measuring adequacy of cash benefits in WC programs has been fundamentally changed. The old methodology relied on a comparison of statutory benefits with the earnings losses of hypothetical workers.

The new and improved methodology for measuring adequacy (and equity) of PPD benefits involves several data inputs: (1) samples of workers who received PPD benefits in a state are selected, (2) samples of workers from the same state (and employer) who were not injured are selected and serve as a control group, (3) income data for several years (such as 2 years) before the date of injury and for several years after the injury (such as 5 years) are collected for the workers in the sample and the control group, (4) the differences between the actual earnings of the injured workers are compared to the actual earnings for the non-injured workers in the control group to produce estimates of the actual wages losses due to the work injuries, (5) The actual benefits received by each worker in the injured worker sample were then compared to the estimated earnings losses of those worker to produce replacement rates. For example, if after the five years from the date of injury an injured experienced $50,000 of earnings losses and received $30,000 of WC cash benefits, then the replacement rate for that worker was 60%.

Such studies are referred to as “wage loss” studies. A survey of the results from several states is provided by Boden, Reville, and Biddle (2006). The average replacement rates for workers receiving PPD benefits ranged from 30-46 percent in five states (California, Wisconsin, New Mexico, Oregon, and Washington). These PPD benefits were clearly inadequate using the NASI test for PPD benefit adequacy. There have been a number of more recent wage loss studies that have reached similar results. The results are especially disturbing because NASI data indicates that cases paying PPD benefits consistently account for over 50 percent of all cash benefits paid by state WC programs.

The significance of the wage loss studies is that although the adequacy of TTD, PTD, and death benefits has probably increased since 1972, the serious shortfall of PPD benefits based on the wage loss studies suggests that the cash benefits are currently seriously inadequate

2. Upon finding weekly cash benefits for TTD and TD (aka PTD) inadequate, the Commission made specific recommendations for the maximum weekly benefit to be at least two-thirds of the average weekly wage in the State. The Commission also recommended progressive increases in maximum weekly benefits so that by 1981 the maximum weekly benefit in each State would be 200% of the State’s average weekly wage. Why did the Commission make this recommendation?

The Commission’s essential recommendation was that the maximum weekly benefit for TTD and PTD should be 100 percent of the SAWW by 1975. If a state had that maximum and the worker’s benefit was 66 2/3 precent of the worker’s preinjury wage, then workers who earned up to 150 percent of the SAWW would receive 66 2/3 percent of their preinjury wage if they qualified for TTD benefits. However, a worker who earned 200 percent of the SAWW would only receive TTD benefits that were less than 66 2/3 percent of their preinjury wages. The Commission felt that workers with relatively high wage should receive 66 2/3 of their wages, not a lower amount because of the maximum weekly benefit. Some wondered if there should be any maximum weekly benefit for TTD. Even very high paid workers may be living paycheck to paycheck.

One drawback of having a very high maximum weekly benefit is that for very high wage workers, the nontaxable WC benefits would produce disincentive problems since WC benefits are not taxable and could exceed take-home pay. To deal with this possibility, the Commission recommended a new basis for TTD benefits, namely the WC benefit should be 80 percent of the worker’s spendable earnings. Spendable earnings were defined as gross wages minus FICA and Federal income taxes. This means that the high wage workers would still experience a 20 percent reduction in their take-home pay, which would provide them an incentive to return to work. (The new basis is described on pages 56-57 of the Commission’s report.)

The Commission essentially recommended that states should have (1) a high maximum weekly benefit (200 percent of the SAWW) coupled with TTD and PTD benefits that were 80 percent of the workers’ preinjury wages.

Iowa, Michigan, and a few other states adopted the spendable earnings approach, although Iowa may be the only state that coupled the 80 percent of spendable earnings benefit with the maximum weekly wage of 200 percent of the SAWW.

Mel Bradshaw, a Commission Member and Executive Vice President at Liberty Mutual, said this was the most innovative of the Commission recommendations. The WCRI issued a study illustrating how the spendable earning approach would work. But only a few states ever adopted the approach.

3. The recent WCRI/IAIABC joint publication on Workers’ Compensation Laws as of January 1, 2022 (https://www.wcrinet.org/reports/workers-compensation-laws-as-of-january-1-2022)  reveals that Iowa is the only State in which the maximum TTD/PTD benefit is at least 200% of the State’s average weekly wage. Do you continue to endorse the Commission’s recommendation that the maximum weekly benefit in each State should be at least 200% of the State’s average weekly wage?

Yes, so long as the 200 percent maximum benefit is coupled with benefits that are 80 percent of the worker’s preinjury spendable earnings. (See the answer to Q2 for more information on the spendable earnings approach.)

4. With regard to PTD, the Commission recommended that weekly payments be made for the duration of the employee’s disability without limitations as to the dollar amount paid or duration of payment. What was the rationale for that recommendation?

In one of our hearings, an insurance company representative boasted about the great protection that injured workers received from the workers’ compensation program, including PTD benefits and medical care. One of the Commission members asked: “But what happens to the worker after he receives the maximum number of PTD benefits.” In response the representative said nothing that was very comforting.

5. The WCRI/IAIABC joint publication entitled Workers’ Compensation Laws as of January 1, 2022 (https://wcrinet.org/reports/workers-compensation-laws-as-of-january-1-2022)  indicates that 15 States and the District of Columbia limit the duration and amount of PTD payments. Does this surprise you?

No. These 16 jurisdictions provide the road signs for the race to the bottom.

6. The Commission’s report states, “[t]he issues arising from benefits for permanent partial disability are so critical to the future of workmen’s compensation that the subject warrants the highest priority.” But, fearing the serious danger that premature or insufficiently detailed recommendations might only worsen the problem, the Commission chose instead to recommend the need for the immediate commencement of a thorough examination of permanent partial disability benefits (PPD). Did such a study ever take place? If so, what did it find/recommend?

As described in my answer to Questions 1, the National Academy of Social Insurance recommended that PPD benefits should replace at least 66 2/3 percent of the lost wages of workers who receive PPD benefits. The NASI Benefits Adequacy Study Panel contained 14 members who represented a wide range of organizations concerned with workers’ compensation, including the insurance industry, the IAIABC, employers, unions, the legal profession, research organizations, and academics (including me).

7. California’s workers’ compensation reform measures over the past decades have significantly increased cash benefit levels including PPD cash benefits. Nonetheless, a recent four-year long study conducted by the RAND Corporation (Earnings Losses and Benefit Adequacy in California’s Workers’ Compensation System by Dworksky, Rennane and Broten) found that benefit adequacy declined, especially for workers with PPD. Does this surprise you?

The results for PPD benefits do not surprise me. California had its own permanent disability rating system from the beginning of the state’s WC program (described in a chapter I wrote for Reville et al. (2005). The California rating system was replaced by a rating system that begins with the ratings from the AMA Guides to the Evaluation of Permanent Impairment. As I recall, the edition of the AMA Guides used in California has been criticized for reducing the impairment ratings for back injuries.

8. Going forward how can workers’ compensation programs do a better job of improving cash benefit adequacy, especially for PPD?

WC programs can improve cash benefits adequacy (and equity) by conducting wage loss studies (as described in the answer to Question 1) and using the empirical evidence to increase or decrease the cash benefits for all PPD cases and to increase or decrease the disability ratings for particular body systems.

9. Do you believe that wage-loss based benefit systems provide more adequate benefits than PPD benefit systems?

A wage-loss based benefits systems is a type of a PPD benefit system that relies on evidence of the actual wage losses of workers who receive PPD benefits to adjust the overall level of PPD benefits and to adjust the PPD benefits for workers with injuries to different categories of body parts.

An impairment-based benefits system is also a type of a PD benefits system that relies on impairment ratings made by doctors or others with medical experience to determine the extent of impairment or functional loss for an injured worker (and not the extent of wage loss or work disability caused by the injury).

The adequacy (or costs) of the wage-loss rating system can be more than, less than, or the same as the adequacy (or costs) of the impairment ratings system.

The generally accepted purpose of WC is to compensate for work disability (actual loss of wages or loss of earning capacity) not to compensate for impairment. As a result, a PPD benefit system that primarily relies on impairment ratings to determine the amount of PPD benefits has a design flaw.

10. In the decades since the release of the Commission’s report, a number of States have significantly expanded their reliance upon scheduled benefits which, of course, are not linked to any loss in earning capacity. Has this phenomenon been (on the whole) positive for covered employees and employers?

I am not sure if there has been an increase in the number of states that have significantly increased their reliance on scheduled benefits which are not linked to any loss of earning capacity. Most of the 10 states studies by Berkowitz and Burton (1987) had WC statutes that included lists of body parts with the corresponding duration of PPD benefits associated with total loss of that body part. In New Jersey, for example, the list of body parts in the statutes determines the duration of almost all PPD cases.

11. In its report the Commission identified 19 essential recommendations for improving State workmen’s compensation programs and considered different methods for implementing those recommendations. One method considered was a complete take-over of all State workmen’s compensation programs by the Federal government. That method was rejected and instead the Commission recommended that States be given an opportunity to comply with the recommendations and compliance be evaluated on July 1, 1975. Absent compliance as of that date, then Congress should mandate that all employers comply with the essential recommendations by way of Federal legislation. Three members of the Commission were not in favor of delaying compliance for three years but would have recommended that Congress take immediate action to make the essential recommendations Federal mandates. In hindsight do you believe the Commission should have recommended the immediate adoption of Federal mandates?

The Commission recommendation that states should have until 1975 was a compromise. Explaining what led to the compromise requires discussion of several topics, some of which are not obvious after 50 years have flashed by.

First, there were no cell phones, Email, Twitter, ZOOM or any other means of immediate communication other than face-to-face conversations, phone calls, and telegraphs.

Second, a pattern emerged in early meetings of the Commission, which were held with members present in the Commission offices on K Street, in Washington, DC. During morning sessions, we would reach tentative agreements on some issues. Then the members would call their home office over lunch hour to report their achievements during the morning. Often, the home office staff would oppose the tentative agreements from the morning, and so when the afternoon session began, we had to start from the top of the day’s agenda again.

Third, the issue that Peter Barth, the Executive Director of the Commission, John Lewis, the Chief Counsel, and I did our best to keep off the agenda of the early meetings was the role of the Federal Government in regulating state WC programs, such as enacting federal standards for state WC programs.

The federal standards topic was particularly toxic and acute because the Occupational Health and Safety (OSHA) Act, which had created the Commission, had largely replaced the states’ role in regulating workplace safety and health with a federal program. States could only operate their own health and safety programs with approval of federal OSHA. A particularly bothersome development during 1971 is that the Occupational Safety and Health Administration had adopted 4,400 interim standards without hearings. Most of these interim standards are still in effect and constitute the majority of all OSHA rules currently in place. The wholesale adoption of interim standards infuriated many employers and states and made many of the Commission’s members apprehensive about the future of the state WC programs.

Fourth, the topic of federal standards for WC was introduced to the members of the Commission at an unusual meeting. Daniel Doherty, Chairman of the Maryland Workmen’s Compensation Commission, and a member of the Commission, arranged for the Commission to have a day-long cruise on the Maryland Governor’s boat. We sailed down the Potamic River, only stopping for lunch in a small town on the Maryland shore.

As you can anticipate, the Commission members were unable to use any devices that allowed the member to contact their office during the day. The major agenda item for the meeting was the possible use of federal standards for workers’ compensation. The main point that Barth-Lewis-Burton made is that OSHA was not the model of federal intervention that was appropriate for WC. Federal standards could be limited to a few essential aspects of a state’s WC statute. Private insurance carriers could continue to operate. State funds and self-insuring employers could continue to operate. Lawyers could continue to serve their clients. State agencies could continue to operate and to be staffed, as was the practice in some states during the 1970s, by relying on patronage to fill positions. And union leaders could continue to serve their members by participating in the legislative process at the state level.

Fifth, the decision on whether to endorse federal standards was delayed until the last meeting of Commission, which was held at a conference center in Virginia about 40-50 miles west of Washington, DC. The center was a former training facility for the CIA and lacked some features typically found in a conference center, such as a plethora of phones. (In the main building, the only phone was in a booth on the first floor, while the meeting room was down two long flights of stairs.) There were no elevators. So, we were in a facility with limited access to outsiders. (I have always wondered how that location was selected?)

Sixth, here is the answer to the Question you asked: In hindsight do you believe the Commission should have recommended the immediate adoption of federal mandates?

The answer is that the recommendation for a three-year delay was a compromise among three factions.

Faction One preferred that federal standards should have been enacted as soon as possible. Those in this faction feared that a three-year delay might result in no federal legislation and also felt the evidence was so clear that state WC programs were in such a dismal state, that there was no reason to delay federal standards.

Faction Two were reluctant supporters of federal standards unless states failed to improve their laws after an extended period. For these members the three-year delay was a barely acceptable compromise.

Eventually Factions One and Two agreed to the three-year delay before states could be evaluated and, if necessary, federal standards could be enacted.

But what about Faction Three, which included members who preferred more invasive responses to states that did not have adequate and equitable programs. Faction Three consisted of Samuel B. Horovitz, a Massachusetts attorney and Professor of Law at Suffolk University; James R. O’Brien, Assistant Director, AFF-CIO; Department of Social Security; and Michael R. Peevey, Director of Research, California Labor Federation, AFL-CIO.

For the Faction Three members, the Report added a section entitled Supplemental Statements by Individual Commissioners. The statements are roughly comparable to Concurring Opinions in a court decision, where the judge accepts the holding included in the majority opinion but indicates a different reason for the majority decision than the majority decision provided. I do not want to push the analogy to concurring opinions too far. But none of the 18 members objected to describing the report of the Commission as a unanimous document.

12. While the Commission’s report candidly acknowledges that its recommendations would increase the costs of workmen’s compensation for most states and many employers, all Commission members agreed that employers and the states had the resources to meet those costs. I found that acknowledgement to be especially bold. Did it generate negative feedback from employer groups and states?

The Commission was concerned about the costs of complying with its recommendations. We asked the National Council on Compensation Insurance (NCCI) to estimate the costs of adopting the 19 essential recommendations and all 84 recommendations in the report for each state. The NCCI estimates were included in Appendix B of the Commission report.

The most rapid increase in benefits and costs occurred during the 1970s, when the compliance scores with the 19 essential recommendations almost doubled. I do not recall any strong reactions from employer groups and states during this period.

The cost of workers’ compensation as a percent of payroll was relatively stable in the first few years of the 1980s. Then benefits and costs rapidly increased for the rest of that decade. It is important to recognize that by the mid-1980s, the major factor driving benefits and costs of workers’ compensation were the increasing costs of the health care system. Medical benefits increased from about one-third all WC benefit costs to about one-half of the costs.

By the late 1980s and early 1990s, benefits and costs of workers’ compensation increased rapidly until peaking around 1992. At this point, some employers, carriers, and states started to claim that the Commission’s recommendations were a source of the higher costs. This explanation overlooks the fact that most of the improvement in the adequacy of WC cash benefits had been completed by 1980 and that the two essential recommendations had little to do with the spiral in medical costs. Those cost increases in the medical care component of WC reflected the spiraling costs in health care in the entire economy and the lag in WC programs to adopt cost-containment procedures for medical care.

The substantial reductions in employers’ costs of WC after the early 1990s had little to do with the Commission either. The major sources of the declines in those costs after the early 1990s were the introduction of cost containment procedures in the WC health care delivery system, the enactment of restrictive compensability rules, and the deregulation of the WC insurance industry, as discussed by Thomasson, Schmidle, and Burton (2007).

13. Did states and employer groups actively lobby against the adoption of federal standards for state workmen’s compensation programs?

For the first year or two after the Report was submitted, there was support for federal standards from many sources, including some carriers and employers. The Commission members were so dismayed by the defects of the state WC programs that had been revealed by the hearings and presentation by experts who made presentations at the meetings of the Commission. (The Commission had 18 hearing and meetings during15 months or so of our existence.)

I think most members concluded there were two options: First, allow the state WC programs to continue the race to the bottom, which would produce a WC system that was so deficient that a federal take-over was almost inevitable. Recall that the Commission had been created by the Occupational Safety and Health Act of 1970 (OSHA Act), which effectively moved long-standing control of workplace safety and health from the states to the federal government. Most Commission members, including me, opposed this option.

Second, preserve the state-run WC system by enacting some basic federal standards that would help the state WC systems survive. I was a supporter of this option.

Despite the endorsement of members of Commission of the Second option, the submission of the Commission’s report resulted in a plethora of reactions that undercut our profound (naive?) unanimous recommendation for federal standards for WC.

The immediate reception to the submission of the Report was encouraging. The July 31, 1972 issue of The New York Times ran a first page, above the fold, article entitled, “Worker Benefits held inadequate in National Study.”

However, further down the first page was an intriguing article with the headline, “Cash in Capitol raid traced to Mexico.” This was the only time that workers’ compensation received more attention than The Watergate Break-in.

A more disturbing development for the fate of the Commission’s report was the decision by the Nixon and Ford administrations to not support the Commission’s unanimous recommendation that federal standards should be enacted if necessary, to incorporate the Commission’s 19 essential recommendations into state WC laws. This was particularly disappointing since the OSHA ACT of 1970, which largely displaced state control over workplace safety and which created the Commission, had been adopted with support of the Nixon Administration and many of the Congressional Republications. In addition, most of the Commission members were loyal Republicans. (Surely, they were not pre-cursors of RHINOs.)

There were several unsuccessful efforts by Congress during the Nixon, Ford, and Carter Presidencies to enact federal standards. Alas, after the 1980 election of President Reagan, the federal standards approach has been moribund.

There was nonetheless a concerted effort by the federal government to help states improve their WC programs during the Ford Administration. The Interdepartmental Workers’ Compensation Task Force sponsored an important study of occupational diseases. In addition, the DOL assigned several WC experts around the country to help states improve their laws.

The immediate impact of the report was thus the result of several factors, including the content of the report in combination with the threat of federal standards and the technical assistance provided by the DOL. The overall impact of these factors can be measured by the extent of states’ compliance with the 19 essential recommendations. In 1972 on average the states complied with 6.9 of the recommendations. By 1980 the average state complied with 12.1 of the 19 recommendations. In other words, the extent of state compliance with the 19 essential recommendations increased by 75 percent during the eight years after submission of the report.

14. The Commission did not shy away from identifying a widespread phenomenon generally antagonist to workmen’s compensation reform efforts—the fear among state policymakers that reforms would increase employers’ workmen’s compensation costs, thereby causing employers to leave one state to relocate their businesses to states with lower workmen’s compensation costs and lower cash benefits. The Commission’s report called this phenomenon an “irrational fear.” Do you sill agree with that characterization?

I agree with the characterization that states that lower the costs of their workers’ compensation programs because they fear that otherwise they will lose employers to another state with even lower workers’ compensation is an irrational fear. But this is a complicated issue that I have pondered since I wrote my dissertation (Burton 1965). I attempt in this answer to discuss in a non-technical manner several aspects of my understanding of the general topic of the tension of operating a social insurance program under the control of individual states in a nation committed to capitalism.

The Historical Origins of the Tension

The tensions of operating workers’ compensation programs at the state level are arguably a design flaw that is a historical fluke. When workers’ compensation laws were first enacted in the US in the early 1900s, a federal workers’ compensation law would have been unconstitutional. Changes to constitutional law in the 1930s would have allowed a federal program. But there has never been a successful effort to federalize the entire state workers’ compensation system.

The Improper Method to Measure Interstate Cost Differences

I was the Co-Editor of the annual publication of the National Academy of Social Insurance (NASI) on workers’ compensation, which is the premier source of information on benefits, coverage, and costs. One of the unique features of a NASI report is data on the total costs of workers’ compensation in each state measured as a percent of wages covered by the workers’ compensation program in the state. NASI received multiple requests over the years to use these NASI data as a measure of a state’s competitive environment. This was an inappropriate use of the NASI data, as explained in a recent issue of the NASI Report (Murphy, Weiss, and Boden 2020, page 41):

            Although there is considerable inter-state variation in employer costs for workers’ compensation per $100 of covered wages, readers are cautioned against using the estimates in Table 14 to identify states with more or less favorable climates for employers or workers. The data on average costs by state do not mean that states with lower costs offer a more competitive environment for employers, because states differ in their mix of high-risk/ low-risk industries. Consider, for example, two industries: logging, for which the workers’ compensation rate is $40.00 per $100 of wages, and banking, for which the rate is $1 per $100 of wages. Suppose State A had 80 percent of its employees in logging and 20 percent in banking, so average costs for workers’ compensation are $32.20 per $100 of wages. State B had 20 percent of its employees in logging and 80 percent in banking, so average employer costs for workers’ compensation are $8.20 per $100 of wages. If Timber-R-Us moved from State A to State B to take advantage of the lower average costs of workers’ compensation, it would not save on these costs. Rather, Timber-R-Us would continue to pay workers’ compensation premiums of $40 per $100 of its wages.

The Proper Way to Measure Interstate Cost Differences: A Simple Hypothetical Example

The proper way to measure interstate costs differences can be explained by extending the example involving Timber-R-US. Suppose the national distribution of premiums was 60 percent Logging and 40 percent Banking. Using this national distribution of premiums in conjunction with the costs of workers’ compensation per $100 of payroll means, the average costs of workers’ compensation was $24.40 per $100 of payroll in both State A and State B. Based on this information, it should be obvious to the management of Timber-R-US that a move to State B is an irrational decision.

There are situations where there are interstate differences in workers’ compensation costs that could justify an employer like Timber-R-US to consider a move to another jurisdiction. If State C has workers’ compensation costs of $20.00 per $100 of payroll for logging and $0.50 per $100 of payroll for banking, which means the average workers’ compensation costs are $12.20 per $100 of payroll, in State C, then a decision by Timbre-R-US to move to State C may be rational. But where can Timber-R-Us or other firms in State C obtain data on the costs of workers’ compensation for a standardized set of industries?

The Proper Way to Measure Interstate Cost Differences: An Ancient Example

The proper method to measure the magnitude of the interstate differences in the costs of workers’ compensation has been one of my research interests since my Ph.D. thesis (Burton 1965). My research was based on data (some unpublished) and advice from Actuary Roy Kallop and other staff at the National Council of Compensation Insurance (NCCI).

Data were collected for 25 states, 23 with private carriers plus two with exclusive state funds (Ohio and West Virginia). For each state, insurance rates were collected for 67 insurance classification, including data for manual rates plus factors, such as dividends, that affected the adjusted manual rates. These 67 classes accounted for 63 percent of all premiums nationally. Averages adjusted manual rates for each state were calculated by using the adjusted manual rates for each of the 67 insurance classifications in the state times the national share of premiums accounted for by each of the insurance classes. The adjusted manual rates were calculated for each of the states for 1958 and 1962. A statistical analysis (regression) was used to explain the differences among the states in the adjusted manual rates (the dependent variable) by a series of independent variables, such as the level of statutory generosity (using the NCCI actuarial procedure) and an index of legal generosity. The statistical analysis was rudimentary by comparison to current econometrics, but I believe this was the first statistical analysis of differences among state workers’ compensation programs.

The Proper Way to Measure Interstate Cost Differences: A Recent Example

My most recent analysis of the differences among states in insurance rates was co-authored (Thomason, Schmidle, and Burton 2007), [the TSB study]. The research was largely based on NCCI data and the advice of Barry Llewellyn, Senior Division Executive for Cost Analysis Services. Adjusted manual rates were calculated for 45-47 states for each year between 1975 and 1995. For each state, insurance rates were collected for 71 insurance classifications, which accounted for 73 percent of all premiums nationally.

During the 20-year period covered by the study, the calculations became much more complicated. As of 1975, the workers’ compensation insurance industry was tightly regulated in most states, not fundamentally different than industry in 1965. For example, in 1975 all carriers in a state were required to use the manual rates for each insurance classes that were approved by the state’s insurance commissioner. Mutual insurance carriers were required to use the same experience rating formula as all other mutual companies, while carriers owned by investors were required to use the same experience rating formula as all other similar carriers. Carriers could compete by using different dividend formulas for the dividend paid after the policy period expired, but competition when the policy was sold was prohibited.

By 1995, when the TSB study period expired, the workers’ compensation insurance industry was fundamentally different in most states than in 1975 and there were significant differences among states. Some states no longer used manual rates (which contain a loading for carrier operating expenses plus profits), but other states required carriers to use uniform pure premiums (covering projected losses) and each carrier was required to publish its own loading factor. There were numerous other competitive features permitted or required by state laws. The totality was often described as “open competition,” although as discussed by TSB, that term covered a variety of practices. In addition, most states expanded the scope of their assigned rating plans, which required policyholders who could not find policies in the competitive market, to pay higher insurance rates than were charged in the voluntary market.

The Significance of the Changes in the Workers’ Compensation Insurance Market

One consequence of the changes in the workers’ compensation insurance market is that research measuring the interstate differences in the employers’ costs of workers’ compensation has become much more difficult and time consuming since the 1990s than it was in the 1960s. I doubt if the TSB research results will ever be updated because of the amount of time required to measure the factors that influence workers’ compensation costs to employers.

The other consequence of the fundamental nature of the workers’ compensation insurance industry is that it is now much more difficult for an employer contemplating a move to another state (motivated by a belief that employer costs for compensation will be lower) for the employer to know what the differences in workers’ compensation costs are among states.

To return to the hypothetical firm, Timber-R-US, how can the owners make a rational decision about whether relocation to another state will reduce the firm’s workers’ compensation costs? What if the firm moves from State B to State C, which has lower insurance rates, only to find that the firm is assigned to the assigned risk market, with higher rates? Or what are the consequences of moving from State A, which relies on pure premium rates as the starting point for determining total premiums, to State D, which relies on manual rates that include allowances for operating expenses and profits?

I am unaware of any source of information on the employers’ costs of workers’ compensation that includes all the factors included in the TPS study. Absent such information, I doubt that any employer can make a rational decision about whether an interstate move should be made in order to reduce workers’ compensation costs.

Do Employers Actually Move from States with High Workers’ Compensation Costs to States with Lower Costs?

I am unaware of any reliable evidence that supports the hypothesis that employers actually move to other state because of differences in the costs of workers’ compensation. Here are several observations.

1. I have heard several allegations that such moves have occurred. But these allegations never rise above the anecdotal level of proof. My guidance to these allegations is based on a sign posted at the RAND Institute: “The Plural of Anecdote is not Evidence.”
2. The evidence that would persuade me that employers move to cheaper states in order to avoid high workers’ compensation costs requires empirical evidence, such as studies that demonstrate higher WC costs lead to employers moving from states after controlling for other factors that may explain the moves. The states with higher WC costs are likely to have higher unemployment insurance benefits, higher taxes, and higher wages – all of which may trigger moves to other states and which in combination are much more expensive than workers’ compensation for most employers.

A sophisticated statistical study is required to distinguish correlation from causation: higher WC costs may be correlated with firms deserting a state, but the underlying reason for the firms move may be higher taxes, wages, etc., which are correlated with higher WC costs, but which are the “true” culprit in explaining the desertion of a state by employers.

3. Research by economists has become much more sophisticated in recent decades in separating independent variables that are “along for the ride” from variables that are the “true” causes of changes in the dependent variable. But one daunting problem for researchers who want to measure the impact of higher WC costs on employers’ location decision is: what data do you use as a measure of the costs of WC in different states.? As discussed above, the NASI data on WC costs as a percentage of payroll are not appropriate for this purpose, because they do not control for interstate differences in industry mix.
4. I am obviously skeptical about the ability of economists or others to identify the net effect of higher WC costs on movements by firms to other states to reduce their WC costs. But I hope such research is conducted because it will provide evidence on an issue that is important for the future of WC.

“Irrational Fear” Revisited

Many pages ago, you posed a question that readers may wish to reread unless they have superb memories. I began my answer with this passage:

I agree with the characterization that states that lower the costs of their WC programs because they fear that otherwise they will lose employers to another state with even lower WC is an irrational fear.

I want to restate this conclusion that is consistent with my views and the contents of the Commission’s report.

1. There is little if any evidence (as opposed to allegations) that employers move to another state in order to reduce their WC costs.
2. Nonetheless, based on my interactions with WC leaders in states, there is a scenario that is asserted by lobbyists and other representatives of employers and insurers, namely that employers will abandon the state unless benefits re reduced and compensability rules are tightened.

This scenario is misleading in my opinion and in the opinions of the Members of the Commission. The essence of our views was that (1) the abandonment of a state by employers because of higher WC benefits and costs is an irrational fear (2) nonetheless, state legislators are persuaded to cut benefits and reduce access to the program because of the Specter of the Vanishing Employer.

One of the most important contributions of the Commission was that the report discussed this dichotomy between fact and fiction about the threat that higher WC costs leads to loss of employers. This insight was a major reason the Commission endorsed federal minimum standards—to constrain the rush to the bottom by setting lower bounds on their impulsive quest for a more competitive business climate in a state.

I have visited many states during my career where the threat of losing employers was cited as a reason for reducing the protection provided by the WC program. One such state was Tennessee, where a presentation was made comparing the WC costs in the state with the costs in the neighboring states. The comparisons seemed to be especially frantic because of the number of states that were contrasted to Tennessee. I subsequently learned that Tennessee had 8 contiguous states, tied with Missouri for the states with the most contiguous states. Perhaps the solution to the threat of runaway employers is not to enact federal standards for WC programs—which is a lost cause anyhow—but to amend the U.S. Constitution to limit each state to having only two contiguous jurisdictions.

The prospects of enacting federal laws establishing minimum standards for WC are the same as the prospects for adoption of the proposal to limit the number of contiguous states. But wait. Maybe originalism is on my side. How many contiguous states did each state have when the Constitution was ratified?

15. In fact, didn’t the Commission advocate that the report’s 19 essential recommendations become federal standards as an antidote to the fear of mass employer exodus from a state with adequate and equitable workmen’s compensation benefits to a state with less generous benefits and lower costs?

Yes.

16. The Commission identified broad coverage of employees as a major objective of a modern workmen’s compensation program. As of 1972, it reported that only about 85% of all employers were protected by workmen’s compensation coverage due in large part to statutory exclusions of certain occupations or classes of employees, as well as state laws providing for elective coverage. The recent WCRI/IAIABC joint publication of Workers’ Compensation Laws as of January 1, 2022 (https://wcrinet.org/reports/workers-compensation-laws-as-of-january-1-2022)  indicates that statutes in approximately 13 states exempt certain small employers from workers’ compensation coverage, and also exclude certain agricultural and domestic employees from coverage. Do you believe the broad coverage of employees recommended by the Commission 50 years ago has been achieved?

I do not believe that the broad coverage of employees recommended by the Commission 50 years ago has been achieved, but I think some progress has been made. The number of states with mandatory coverage of employers (R2.1a) increased from 33 in 1972 to 49 in 2022, and the number of states that do not exempt employers with only a limited number of employees (R2.2) increased from 22 in 1972 to 36 in 2022.

17. In 2016 the Obama administration issued a report entitled, “Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers” (DOL report). That report describes progress among the states in meeting the Commission’s 19 essential recommendations, calling the progress as “notable” with improvement in the adequacy of some benefits in the years immediately following release of the Commission’s report. (Between 1972 and 1980, compliance with the 19 essential recommendations nearly doubled.) The DOL report suggests that progress made by the states in achieving greater compliance with the Commission’s essential recommendations in the years immediately following release of the Commission’s report was likely motivated by fear of federal intervention, and when it became clear that federal intervention was improbable, motivation to conform to the Commission’s recommendations dwindled. Do you agree with that assessment?

Yes, I agree that once federal intervention was improbable, motivation to conform to the Commission’s recommendations dwindled. Indeed, I believe a more disturbing assessment is warranted. Federal intervention in state WC programs in the form of federal standards is almost inconceivable in the next 25 years, which means the race to the bottom faces almost no impediments. It will be interesting to assess the accuracy of my prognostication at the 75^th Anniversary of the Commission. I am sorry that I will not be able to attend.

18. The legislation that created the Commission included a “sunset” provision whereby the Commission was disbanded 90 days after it issued the report. Do you believe the sunset provision was premature, especially in light of the Commission’s recommendation of a July 1975 compliance date deadline?

Yes, that was a bad idea. For example, the Commission published the Compendium on Workmen’s Compensation and three volumes of Supplemental Studies after 90 days, but only because some persons donated their time to get the publications out. Unfortunately, the Transcripts of the Commission hearing were prepared but never published because we ran out of money.

19. Was any federal agency/committee given responsibility to oversee states’ compliance with the Commission’s essential recommendations during the three-year period from July 1972 to July 1975?

The Office of Workers’ Compensation Programs (OWCP) or its predecessor, which is part of the DOL, monitored state compliance with the 19 essential recommendations of the Commission and published semi-annual scorecards until 2004.

20. We know that by the mid 1980s to the early 1990s there was a shift away from the Commission’s focus on improving workers’ compensation programs as states became more and more concerned about employers’ costs. During this period, medical costs and wage replacement benefits both rose, precipitating a call for legislative reforms to control costs by cutting benefits. The DOL report observes that in the period 2002-2014 the number of states that cut access to benefits significantly outnumbered those that increased or maintained benefit availability. What can states do better to strike the right balance between adequate benefits and reasonable employer costs?

Not much. Costs peaked at $2.17 per $100 of payroll in the early 1990s and decreased to $1.21 in recent years, according to data published by the National Academy of Social Insurance. During that period, state WC programs have become less supportive to workers, especially because of tightening compensability rules. Benefits declined from a peak of $1.65 per $100 of payroll in the early 1990s to $ 0.77 in recent years. In essence, employers were able to reduce their costs by cutting benefits. The race to the bottom proceeds with lower costs for employers and deteriorating protection for workers.

21. One of the Commission’s essential recommendations was that states should provide full coverage for work-related diseases. The Commission’s report states that as of 1972, 41 states were in compliance with that recommendation. That level of reported coverage turned out to be in error. The DOL report found the actual incidence of occupational disease to be much greater than the number of occupational disease claims filed and compensated in workers’ compensation systems, blaming causation standards such as “major contributing cause” and apportionment (California) as factors. Notwithstanding, the WCRI/IAIABC joint publication on Workers’ Compensation Laws as of January 1, 2022 (https://wcrinet.org/reports/workers-compensation-laws-as-of-january-1-2022)  indicates that the majority of state WC programs cover cumulative trauma injuries as well as mental stress claims that do not involve a physical component. In your opinion, have we achieved the Commission’s standard of full coverage of occupational diseases?

The National Commission made a serious error when it wrote that 41 states were in compliance with R2.13 (States should provide full coverage for work-related disease). Within a few years after the report was submitted, the notion that states provided full coverage of work-related diseases was shattered. Moreover, since 1990, compensability of occupational diseases has become more of challenge for workers. These developments are discussed in more detail in the answer to Q.1

22. Speaking of diseases, in your opinion how well did state workers’ compensation programs do in handling COVID-19 claims?

About as would be expected. The WC statues in effect as of 2020 in general did not accept COVID-19 claims. Several states established presumptions of compensability by executive orders or statutory amendments, as discussed in Burton (2021). We are a long way from dealing with COVID-19 claims, ad so a definitive assessment of the ability of state WC programs to deal with claims involving COVID-19 contracted at the workplace is premature. But previous experience with diseases, such as back lung, suggests that neither WC nor other disability programs in the US have devised a solution to dealing with occupational diseases, especially those that have both work-related and non-work-related causes.

23. Early in the COVID-19 pandemic, California Governor Gavin Newsom issued a presumption of compensability in favor of an employee required to work at the employer’s premises at the direction of the employer and who tested positive for COVID-19 within 14 days of work. Later, that presumption along with a presumption applicable to health care and protective service professions as well as a presumption involving a COVID-19 outbreak at an employer’s place of business were codified. Are you generally in favor of such presumptions of compensability? If so, why? If not, why?

This reinforces my response to Q22. We are living in an era in which we have identified a problem—how do we provide medical care and cash benefits to workers who are disabled by diseases with multiple causes—exposures to virus at the workplace and/or elsewhere; personal behavior, such as smoking or injection of legal or illegal drugs; employer decisions to rely on dangerous production methods; heredity of genes making a person more or less susceptible to particular diseases; and other causes of diseases.

Each reader can add other complexities to the problems of determining compensability of diseases and the amount of cash or medical benefits for disabled workers and other persons. And each reader understands the difficulties of designing a program or programs that provide prevention, treatment, and financial support for the disabled workers. Or more generally, all persons in US who are disabled.

My career has largely been devoted to figuring out rational solutions for workers disabled by work-related injuries or diseases. But I confess this is a narrow (parochial?) approach to dealing with the causation issues described above.

How do we begin to deal with a more comprehensive solution to the problems I have identified? Perhaps the National Academy of Social Insurance (NASI) is the best hope, since it includes experts from multiple programs that have different criteria for determining what is compensable. The ultimate goal would be a comprehensive program to deal with diseases or a multiple program set of coordinated causation rules that in combination provide universal coverage without costly overlaps among programs. Such a solution is well beyond the ability of WC to solve by itself.

24. The Comp Scope Benchmarks, 22^nd Edition (https://wcrinet.org/reports/compscope-benchmarks-22nd-edition)  reports that COVID-19 claims are fundamentally different than non-COVID-19 claims. For example, COVID-19 claims had much lower average indemnity benefits per claim, often no medical payments, and tended to be concentrated in certain occupations. A California study conducted by RAND Corporation (COVID-19 in the Workers’ Compensation System) reached similar findings. The study attributed lower indemnity payments to the availability of special federal and state payments intended to help cushion the loss of income caused by governmental shut-down and shelter-in-place orders. It also observed that many COVID-19 claims were submitted without any medical bills, largely because workers received medical treatment through their own group insurance. However, workers who became seriously ill from a COVID-19 infection had much higher medical expenditures. Additionally, RAND cautioned that medical expenses for employees who develop long COVID could be substantial. Do you believe the majority of state WC programs are equipped to handle a disease like COVID-19?

Thanks for the slow pitch over the center of the plate. No.

25. This brings me to the question, is there a better way? The Commission tackled alternatives to the state program model (as did the DOL report). It contemplated getting rid of state-based programs altogether, or a federal takeover, or the integration of workers’ compensation with other social safety-net programs. As a world-renowned expert in workers’ compensation, how do you answer that question today?

There is no better alternative to a system of state-controlled WC programs. But we need an occasional reminder that this system has a design flaw (state programs largely driven by the Specter of the Vanishing Employer, as discussed in the Answer to Q. 14.) Rest in Peace, the notion of adequate and equitable state workers’ compensation programs.

26. We are in an era of significant work-place changes. The “gig” economy is expanding with more and more workers being classified as independent contractors rather than employees. Have our state-based workers’ compensation programs become obsolete?

WC programs have not become obsolete because of the misclassification of employees as independent contractors. The misclassification of employees as independent contractors has been a long-standing problem in WC. There have also been continuing problems with paying workers off the book and misclassifying workers into insurance classes that have lower premium rates below the appropriate rate for the workers. These threats to WC coverage warrant extensive monitoring by private entities, such as the insurance industry, and government entities, such as the anti-fraud units in WC agencies.

While WC has a history of dealing with issues, such as the misclassification of employees as independent contractors and similar schemes to reduce the costs of the workforce, it is important to recognize that the manipulation of the description or treatment of workers by employers has become an increasing problem for the entire labor market and the economy, as documented by David Weill in The Fissured Workplace (2014). In addition to WC, the protection provided to employees has been reduced for Unemployment Insurance, the Old Age and Disability Insurance components of the Social Security program, health insurance and pensions provided by employers, and a variety of other programs. The problems require solutions beyond the capability of any one program or branch of government, such as WC or the current Congress.

27. California statutes (Lab. Code §§ 3201.5, 3201.7) allow employers and unions to create their own alternatives for workers’ compensation benefit delivery and dispute resolution through a collective bargaining agreement. These programs, often referred to as “carve-outs,” have grown significantly in recent years. In 2011 there were 24 active programs. Today there are approximately 100 such programs. Do you believe alternative dispute resolution is a viable alternative to state-based workers’ compensation programs? If so, why? If not, why?

I have not conducted any research on carve-out agreements or even read the studies of these programs in many years, and so my answer draws on my knowledge of a similar procedure used for many decades in unionized firms.

Many readers of this interview are probably aware of my publications, speeches, and/or public service involving workers’ compensation. However, during my academic career, most of my courses and much of my research have dealt with collective bargaining, unions, labor law, and employment law. I also was the President of the Labor and Employment Relations Association, which is the professional organizations for practitioners, public officials, and academics.

One of the outstanding achievements of collective bargaining in the private sector (and to a somewhat lesser extent in the public sector) is that most unionized firms have negotiated collective bargaining agreements that cover most aspects of the employment relationship, including wages, fringe benefits, working conditions, and standards and procedures for discipling of workers. In most unionized firms, disputes over all matters included in the collective bargaining agreement are enforced by a grievance and an arbitration procedure the parties have negotiated. In most agreements, the arbitrator is selected by mutual agreement of management and the union. With limited exceptions, the decision by the arbitrator is binding on the parties and cannot be appealed to the courts or other government agencies.

I believe that the dispute resolution procedure used to resolve disagreements between unions and employers in the US has been a great success. And thus, my answer to your question (Do you believe alternative dispute resolution is a viable alternative to state-based workers’ compensation programs?) is clearly yes.

Subject to this obvious qualifier. The alternative dispute procedure I endorse requires that the workplace must be organized by a legitimate union. Particularly in the private sector, the number of unionized work sites has dramatically declined in recent decades. As a result, the potential number of “carve-outs” plans is a modest number in a few states (California and New Jersey), for example) and a miniscule number in a most states.

REFERENCES

Berkowitz, Monroe and John F Burton, Jr. 1987. Permanent Disability Benefits in Workers’ Compensation.  Kalamazoo, MI: W. E. Upjohn Institute for Employment Research.

Boden, Leslie I., Robert T. Reville, and Jeff Biddle. 2005. “The Adequacy of Workers’ Compensation Cash Benefits,” in Karen Roberts, John F. Burton, Jr., and Mathew Bodah, eds, Workplace Injuries and Diseases: Prevention and Compensation. Kalamazoo, MI: w. E. Upjohn Institute for Employment Research.

Burton, John F. Jr. 1965. The Significance and Causes of the Interstate Variations in the Employers’ Costs of Workers’ Compensation.  Ph.D.. Dissertation in Economics.  Ann Arbor, MI.: University of Michigan.

Burton, John F., Jr. 2021. “COVID-19 as an Occupational Disease: The Challenge for Workers’ Compensation.” In Thomas Robinson, Workers; Compensation: Emerging Issues and Analysis. New York, NY: LexisNexis.

Hunt, H. Allan, Editor. 2004. Adequacy of Earnings Replacement in workers’ Compensation Programs: A Report of the Study Panel on Benefit Adequacy of the Workers’ Compensation Steering Committee of the National Academy of Social Insurance,   Kalamazoo, MI: w. E. Upjohn Institute for Employment Research.

Murphy, Griffin, Jay Patel, Elaine Weiss, and Lester I. Boden. 2020. Workers’ Compensation: Benefits, Coverage, and Costs. Washington, DC.: National Academy of Social Insurance.

National Commission on State Workmen’s Compensation Laws. 1972. The Report of the National Commission on State Workmen’s Compensation Laws. Washington, DC Government Printing Office.

Reville, Robert T., Seth A. Seabury, Frank W. Neuhauser, John F. Burton, Jr., and Michael D. Greenberg. An Evaluation of California’s Permanent Disability Rating System. Santa Mona, CA.: RAND Institute for Civil Justice.

Spieler, Emily A. and John F. Burton, Jr. 2012. “The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits.” American Journal of Industrial Medicine, Vol. 55: 487-505.

Spieler, Emily A. 2017. “Reassessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017.” Rutgers University Law Review 69: 891-1014.

Thomason, Terry, Timothy P.. Schmidle,  and John F. Burton, Jr.  2007. Workers’ Compensation: Benefits, Costs, and Safety under Alternative Insurance Arrangements.  Kalamazoo, MI: W. E. Upjohn Institute for Employment Research.

Weil, David. 2014. The Fissured Workplace. Cambridge, MA: Harvard University Press.

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