Nov 15, 2012
- Jack Martone, The American Equity Underwriters, Inc.
It’s a common observation among employers, insurance carriers, and the defense bar that the Longshore Act is interpreted too liberally in favor of injured workers. Let’s assume that this observation is valid, on a scale ranging from somewhat valid to an understatement, depending on your personal opinion. Why is this?
Well, who remembers the second half of the 19th century? It was a period characterized in the United States by railroad building, mine digging, factory mechanizing, meat packing (don’t ask), robber baron-ing, muckraking, union busting, sweat shopping, and the 6 ½ day work weeks, 12 hour work days, child labor, company stores, workplace deathtraps, and all of the other components of Industrial Age progress?
Conditions were very bad for the working person. But you know Newton’s Third Law of Motion? To every action there is an equal and opposite reaction? Well, there may be a corresponding Third Law of Social Trends, viz., to every movement there is an unpredictable and disproportionate counter movement.
So, the tide turned, or if you prefer, the pendulum swung. What is referred to as The Progressive Era at the end of the 19th and beginning of the 20th centuries was a period characterized by humanitarian concerns, and by the formation of labor unions, violent strikes, violent and non-violent marches and demonstrations in the cause of social issues, and a wave of laws designed to “remedy” the abuses of the Industrial Age.
For just a very few of many examples from the period:
1886 – Haymarket Square – bomb explodes among workers demanding an 8 hour workday
1886 – AFL founded
1890 – United Mine Workers founded
1893 – Violent Homestead Mine strike
1894 – Violent American Railway Union strike (Pullman Company)
1900 – ILGWU founded
1903 – Mary Harris (Mother) Jones leads child mill workers on a week long march from PA to NY
1906 – Upton Sinclair publishes The Jungle, a novel about conditions in a meatpacking plant
1911 – Triangle Shirt Waist Company fire in New York kills 146 sweatshop worker
Workers’ compensation laws were part of this humanitarian social movement. The first such laws were passed in 1910 in New York and Wisconsin, and all of the other states followed up quickly. The Longshoremen’s and Harbor Workers’ Compensation Act, eventually enacted in 1927 after some federal/state constitutional issues were resolved, is very much a product of this progressive movement.
These Progressive Era laws, addressing child labor, minimum wage, safety, and other social issues, were expressly intended to remedy abuses. They were, and are, referred to as “remedial” statutes. They are liberally interpreted to this day in favor of workers and other beneficiaries of the social conscience by courts who take notice of legislative intent.
You could argue that following the entitlement high points of the 1960’s and 1970’s the tide began to swing back in some areas. Beginning in the 1980’s many state workers’ compensation laws were, and are being, amended with measures designed to reduce costs, such as lowering rates, limiting duration of permanent disability benefits, and attempting to control medical costs. The Longshore Act has not been amended since 1984, with the exception of the 2009 recreational boat amendment. The Longshore Act is still interpreted squarely within the tradition of remedial statutes. Even though many of the conditions that gave rise to the need for remediation have long since subsided, the courts’ still interpret the law in accordance with the original legislative intent.
If you’re trying to decide whether an injury is covered by the Longshore Act, or whether an accident has been reported in a timely manner, or how intoxication or intent to injure factor into compensability, or whether an injury was actually caused by employment, remember that the Longshore Act is a remedial product of the Progressive Era.
There are messages here for maritime employers. For example, get Longshore coverage if there’s even the slightest doubt about exposure, and don’t contest issues that you can’t win. Have Longshore claims experts handle claims in the most cost effective and fair manner.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.