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OCULREV Vol. 41-3 Winter 2016 Burke 337--423 (Do Not Delete) 4/28/2017 2:00 PM OKLAHOMA CITY UNIVERSITY LAW REVIEW VOLUME 41 WINTER 2016 NUMBER 3 ARTICLE THE EVOLUTION OF WORKERS’ COMPENSATION LAW IN OKLAHOMA: IS THE GRAND BARGAIN STILL ALIVE? Bob Burke I. INTRODUCTION The concept of compensating injured workers for work-related accidents is not new. As early as 2050 B.C., the law of the city-state of Ur in the Fertile Crescent provided for payment for injuries to specific parts of the body.1 “Ancient Greek, Roman, Arab, and Chinese law” allowed a J.D., Oklahoma City University School of Law; B.A., Journalism, University of Oklahoma; Honorary Doctorate of Humane Letters, Oklahoma City University; Fellow, The College of Workers’ Compensation Lawyers; assisted in writing changes to Oklahoma workers’ compensation law, 1977 to 2011; rewrote entire Workers’ Compensation Code, 2011; member, Oklahoma Advisory Council on Workers’ Compensation, 1994 to 2011; Oklahoma Secretary of Commerce in administration of Governor David Boren; managed Boren’s first campaign for U.S. Senate, 1978; chair, Legal Committee, Fallin Commission for Workers’ Compensation Reform, 1994 to 1998; member, Oklahoma Bar Association Judicial Elections Committee, 2016; represented 16,000 injured workers since 1980. All conclusions are those of the author. 1. Gregory P. Guyton, A Brief History of Workers’ Compensation, 19 IOWA ORTHOPAEDIC J., 1999, at 106, 106 (1999). Guyton, a board-certified orthopedic surgeon, authored an excellent overview of the workers’ compensation system in the United States 337 OCULREV Vol. 41-3 Winter 2016 Burke 337--423 (Do Not Delete) 4/28/2017 2:00 PM 338 Oklahoma City University Law Review [Vol. 41 worker to collect monetary compensation for an injury to a specific body part according to a schedule.2 Indeed, the seventeenth-century pirate Captain Morgan reportedly used a compensation schedule for injuries his sailors sustained while engaged in their rather injury-prone occupation.3 The concept of awarding scheduled benefits in workers’ compensation continues in the twenty-first century.4 In the Middle Ages, scheduled payments for workers’ injuries faded like the parchment on which they were written.5 Feudalism, as “the primary structure of government,” gave injured workers little relief unless they served a benevolent lord who adhered to “the doctrine of noblesse oblige; an honorable lord would care for his injured serf.”6 Prussia was the first country in Europe to legally protect injured workers, passing legislation in 1838 to protect railroad employees injured on the job.7 America owes its workers’-compensation-system heritage to Prussian Chancellor Otto von Bismarck.8 In an effort “to mitigate social unrest, [Bismarck] created the Employer’s Liability Law of 1871.”9 But while at the Department of Orthopedics, University of North Carolina, Chapel Hill, North Carolina. 2. Id. 3. Michael C. Duff, Worse than Pirates or Prussian Chancellors: A State’s Authority to Opt-Out of the Quid Pro Quo, 17 MARQ. BENEFITS & SOC. WELFARE L. REV. 123, 132 (2016). 4. Even the term workers’ compensation has evolved through the ages. In Europe, laws were often referred to as workingmen’s protection. See LEE K. FRANKEL & MILES M. DAWSON, WORKINGMEN’S INSURANCE IN EUROPE 4 (1910); Lloyd Harger, Workers’ Compensation, A Brief History, DIVISION OF WORKERS’ COMPENSATION, http://www.my floridacfo.com/Division/WC/InfoFaqs/history.htm [https://perma.cc/QE26-9728]. The first American statutes, including Oklahoma’s initial law, were called workmen’s compensation laws. E.g., Workmens Compensation Law, ch. 246, 1915 Okla. Sess. Laws 471. (Inexplicably, the apostrophe was omitted from Oklahoma’s first act.) After the middle of the twentieth century, legislatures and courts changed the term to workers’ compensation to reflect the growing number of women in the labor force. Workers’ Compensation Act, ch. 234, 1977 Okla. Sess. Laws 587. 5. See Guyton, supra note 1, at 106. 6. Id. 7. See John M. Kleeberg, From Strict Liability to Workers’ Compensation: The Prussian Railroad Law, the German Liability Act, and the Introduction of Bismarck’s Accident Insurance in Germany, 1838-1884, 36 N.Y.U. J. INT’L L. & POL. 53, 61–62 (2003). See generally id. (providing a detailed history on the evolution of workers’ compensation in Germany). 8. See Guyton, supra note 1, at 107; Alan Pierce, Workers’ Compensation in the United States: The First 100 Years, WORKERS’ FIRST WATCH, Spring 2011, at 61, 62. 9. Pierce, supra note 8, at 62; accord Guyton, supra note 1, at 107. OCULREV Vol. 41-3 Winter 2016 Burke 337--423 (Do Not Delete) 4/28/2017 2:00 PM 2016] Workers’ Compensation Law in Oklahoma 339 Bismarck’s motivation was not just social control; in his speech titled Practical Christianity, Bismarck made a moral, religious, and political case for requiring the compensation of injured workers.10 The law provided benefits for lost wages, medical treatment, and rehabilitation services, which became the template for workers’ compensation nearly a century and a half later.11 As Alan Pierce, a leading American workers’ compensation attorney, has written, “The centerpiece of von Bismarck’s plan was the shielding of employers from civil lawsuits; thus the exclusive remedy doctrine was born.”12 The English Parliament passed the Employer’s Liability Act in 1880 as industrialization flourished in Great Britain.13 But under English common law, a worker’s only remedy was to sue his employer.14 Three common-law principles guided the employer’s defense: contributory negligence, the fellow-servant rule, and the assumption-of-the-risk doctrine.15 Accordingly, the employer prevailed in three situations: if the worker was in any way responsible for the injury; if a fellow worker’s negligence contributed in the least bit to the injury; or if the worker was aware of the inherent danger in the assigned task.16 These three legal concepts became known as the “unholy trinity of defenses.”17 10. Otto von Bismarck, Practical Christianity (Edmund von Mach trans.), in 10 THE GERMAN CLASSICS: MASTERPIECES OF GERMAN LITERATURE 201, 229 (Kuno Francke et al. eds., 1914) (“[W]e felt the need of insisting by this law on a treatment of the poor which should be worthy of humanity.”); see Duff, supra note 3, at 132 (discussing Bismarck’s views). 11. See Pierce, supra note 8, at 62. 12. Id. 13. Guyton, supra note 1, at 107. 14. Id. 15. E.g., id. at 106; Martha T. McCluskey, The Illusion of Efficiency in Workers’ Compensation “Reform,” 50 RUTGERS L. REV. 657, 669 (1998). 16. Guyton, supra note 1, at 106. 17. Id. And they were unholy indeed. See generally P. Blake Keeting, Historical Origins of Workmen’s Compensation Laws in the United States: Implementing the European Social Insurance Idea, 11 KAN. J.L. & PUB. POL’Y 279, 279–90 (2001–2002) (examining the “futility of the injured worker’s remedy” in the face of “the employer’s ‘unholy trinity’ of defenses”). As to the irrationality and immorality of the assumption-of- the-risk doctrine, Judge Seymour D. Thompson wrote: [T]he rule of judge-made law which holds the servant at all times and under all circumstances, bound to avoid [risks] at his peril, is a draconic rule. It is destitute of any semblance of justice or humanity. It is cruel and wicked. It illustrates the subserviency of the American judiciary to the great corporations. Those who can reconcile their consciences to the cold brutality of the general rule with OCULREV Vol. 41-3 Winter 2016 Burke 337--423 (Do Not Delete) 4/28/2017 2:00 PM 340 Oklahoma City University Law Review [Vol. 41 Barristers and solicitors began representing injured workers on a contingent-fee basis, clogging civil court dockets.18 During the confusion caused by this flood, employers noticed they were losing a growing percentage of cases.19 They were uncomfortable, even though they still won most cases.20 The occasional large jury verdicts in favor of workers and the resulting judgment liens that tied up factories and machinery created enough uncertainty for employers.21 Finally fed up with this status quo, at the turn of the twentieth century, England enacted its Workmen’s Compensation Act.22 The United States was slow to react to the changing methods of resolving disputes between injured workers and employers.23 After the Civil War, as textile plants in New York and New Jersey turned from manufacturing uniforms to civilian clothing, “the plight of [sweatshop] workers” was in the spotlight.24 The legal profession grew, and attorneys began taking work-related injury cases to jury trials.25 Companies recognized the high cost of defending lawsuits even if they used available defenses and prevailed.26 In the early years of the twentieth century, “the increase in lawsuits had the same effect . in the United States that it had in England.”27 Tort cases involving work injuries overburdened court dockets.28 Oklahoma reference to the servant accepting the risk, are at liberty to do so; I envy neither their heads nor their hearts. Seymour D. Thompson, Under What Circumstances a Servant Accepts the Risk of His Employment, 31 AM. L. REV. 82, 85–86 (1897). 18. Harger, supra note 4. 19. Id. 20. Id. (reporting that workers were winning around fifteen percent of cases); see also Keeting, supra note 17, at 280–81. 21. Harger, supra note 4. 22. See Prudence, Responsibility of Employers for Accidents to Their Workmen, 2 STUDENT’S COMPANION 328, 332 (1912). 23. See Harger, supra note 4. See generally Keeting, supra note 17, at 283–96, for a discussion of the economic and philosophical conditions in the United States that resulted in its slower adoption of workers’ compensation.