Draft report of stuff following a thread from this on insurance and workmen’s comp.
Workmen’s Compensation law did not exist in the United States before 1910. By 1922, all but a handful of U.S. states had Workmen’s Compensation. Prior to Workmen’s Compensation, injured workers could only receive restitution by bringing a lawsuit. I initially thought that the State Supreme Court was the final court of appeal for all injury cases in a given state. In the process of doing this research, I found that this was true for employers who operated in only one state, but that employers who operated across state lines would often have their cases heard in Federal District Court. I realized that this meant that there were probably more sources than I had identified, in more locations than I was aware of. I decided to continue to focus on State Supreme Court cases for the time being.
I began by looking at State Supreme Court cases in Minnesota, Wisconsin, Iowa, and Illinois. I chose these states on the rationale that familiarizing myself with these states’ cases would provide me with a source base that is relatively easy to access from Minneapolis. Using Lexis Academic I located 277 workplace injury cases heard by the State Supreme Court in Minnesota between 1900 and 1916. I have copies of the decisions for all of these cases. I built a database in MS Access to keep track of cases, and in the process have learned at least the basics of using this program. I have a roughly similar number of decisions for similar cases from Illinois, Iowa, and Wisconsin, which I have not yet put into my database. I decided to focus on the Minnesota cases for the short term, since there were so many of them.
Until mid way through the summer I had it firmly in mind that one of my main goals would be to calculate win and loss rates as well as damage award levels for injured male and female employees. I had previously done research on gender and performance in lawsuits brought by injured women industrial workers. My hope was that such calculations would help me argue for the efficacy of women’s courtroom performances.
I focused initially on very simple factual questions such as, what percent of workplace injury lawsuits involved women. How did women’s lawsuit outcomes tend to differ from men’s? Which counties sent the most cases to the State Supreme Court? Were most appeals to the Supreme Court brought by employers or injured employees? Were there patterns of change over time?
These questions and the answers to them break down into two basic categories, those that help me identify research sites or targets, and those that push me to reflect on my project. The main three site questions are about the counties, the employers, and the attorneys most often involved in injury cases before the State Supreme Court. Hennepin and Ramsey counties account for more than half of the State Supreme Court cases dealing with workplace injury prior to Workmen’s Compensation. If there is a correlation between State Supreme Court cases and lower level cases, then these counties should have also seen more lower court cases than others as well. The vast majority of defendant employers only ended up in the State Supreme Court in injury suits once. Twelve companies appeared more than once. The records of some of these companies, such as the Northwestern Knitting Company, are archived at the Minnesota Historical Society. Most attorneys, particularly employees’ attorneys, only appeared before the State Supreme Court once in an injury suit. Some attorneys appeared more often, however. The two who appeared most often were John Jenswold Jr., who appeared 9 times as an employee’s attorney, and Morton Barrows, who appeared 13 times, always for defendant employers. I have not located records for Jenswold. The records of the law firm that Barrows worked for, Davis, Kellogg and Severance, are housed at the Minnesota Historical Society. I have not yet looked at these records.
Calculating win rates and damage rates served as my reflection questions.
Thus far I’ve found a win rate of about 66% for injured men. Damages awarded they ranged from $300 to almost $14,000. The average damage awarded was $3500. The average damages sought in these cases were just over $9800, approximately 36% of damages sought. The average damages sought men’s nonfatal injuries were just under $11,000. The average damages awarded in these cases were just over $3300, about 30% of damages sought.
I have 19 cases of women injured in my database so far, none of which involved fatal injuries. Of these, 14 plaintiffs ultimately won, a win rate of about 74%. On average, women plaintiffs who ultimately won sought damages of about $14,000. The average award for the women who won was about $4000, about 29% of damages sought.
Speculatively speaking, and assuming a few things about what values these numbers reflect, these figures suggest the following. Courts cared more about men killed than men nonfatally injured, and more about women injured than men killed. This is reflected in both the rates at which plaintiffs won and the awards plaintiffs were given.
I began to think of these court cases as a sort of macabre market in human body parts. Plaintiffs and defendants were effectively haggling over prices, with judges and juries setting some standards for and intervening in the haggling. This made the comparison of damages sought to damages awarded interesting. This number indicates the distance between the ‘asking price’ for injury and the ‘price’ received. This number could measure the degree to which the seller got the price desired (this assumes that asking price equaled price desired. It’s not clear that this was actually the case). If this was the case then – to strain and exaggerate and already grotesque and problematic metaphor - it would mean that cases over nonfatal injuries were less satisfactory to the sellers (the plaintiffs). Given that the asking price – the damage sought – tended to be lower in fatal injury cases than in nonfatal injury cases, it would seem odd if the asking price was actually the price desired.
Up until this point, I had largely been focusing on briefly skimming the decisions in my cases, as part of building my database. The figures on damages awarded and damages sought and the market metaphor made me go back and look closely at the sections of the decisions dealing with amounts awarded. When the worker was killed, the damage calculations made in court were a relatively simple matter of wages earned and the likely number of years that the worker would have continued to work. In nonfatal injury cases, however, an additional factor appeared. Judges frequently remarked that it was legitimate for juries to give awards based in part on the suffering endured by injured workers, provided those workers weren’t killed. At the same time, judges also remarked that calculating the value of suffering was an impossible task, despite the fact that jurors did so.
At this point I shifted gears. I began to look more at what happened in the shift to Workmen’s Compensation, when awards were standardized and calculations of pain and suffering were no longer appropriate. I have only begun this piece of my research, but it led to a serendipitous find which will, I think, prove crucial to my project.
I traveled to Des Moines, Iowa and Madison, Wisconsin to look at the records of those states’ Workmen’s Compensation commissions. I arrived in Iowa to find that the publicly accessible computer network was down, which hampered my research. I did find some reports workplace accidents assembled by that state’s Bureau of Labor Statistics, but I am not sure yet if these are relevant to my work.
In Madison, however, I found a tantalizing source from the period after the introduction of Workmen’s Compensation. I found a letter from an employer to the state commission describing what the employer took to be a dilemma. The company wrote that they employed a man with a heart condition and included supporting reports from two physicians. The company expressed concern that the man would suffer abnormally great injuries if an accident happened. Since they were liable for the sum of his injuries in the case of an accident, they wanted to either be released of their liability for this man, or fire him. The state commission helped the company get out of their liability for this man by asking him to sign a waiver – a waiver which companies could not request employees to sign, though the commission could make such requests on companies’ behalf. In their correspondence with the company, the commission mentioned that the blind and epileptic were automatically exempt from Workmen’s Compensation. After I found this source, I found a passing mention in a secondary work about disabled people losing jobs shortly after the creation of Workmen’s Compensation laws. I hope to locate other similar sources in addition to this one from Madison. I have begun to look at the records of the Minnesota Workmen’s Compensation Commission held in Saint Paul but I have not yet found a similar situation.
This scenario for disabled workers fascinated me and continues to do so. I am currently thinking about this as a way to frame my over all project in terms of risk. In the late 19th century, a shift in ideology occurred in which workplaces were no longer held to be basically safe for competent male workers (I do not mean to say the workplaces were safe, but that they were considered safe if people took proper care). Instead workplaces came to be considered inherently risky, such that risk at work must be managed, including compensation for those who got hurt on the job. As part of this shift, Workmen’s Compensation made injuries a predictable financial risk for employers – as opposed to the unpredictable risks posed by lawsuits prior to Workmen’s Compensation. In this new institutional context, companies came to perceive disabled and sick workers as a greater financial risk than other workers, because they were likely to suffer worse injures from accidents. As a result, many companies decided it was not worthwhile to hire these workers. Thus, metaphorically speaking, when Workmen’s Compensation socialized the risks of workplace injury, disabled workers were excluded from the definitions of “society” and or of “work.”