Document 44EVKNvzb8zR3w7mrq0e9JB0N

FILE NAME Insurance Industry INS DATE 1936 Aug 28 DOC INS011 DOCUMENT DESCRIPTION Article from The Eastern Underwriter - Occupational Disease Problems Aired Page 30 August 1936 UNDERWRITER Insurance Section of American Bar Associatio Occupational Disease Problems Aired Call Social Securit Act Unconstit Preventive Measures Considered As Important As Compensa- OPINION OF INSURANCE tion Benefits H. D. Sayer Leads Off Discussion Messrs Waters Bartlett Caverly and Cronin Participants Big Crowd at Two Bost Five Round Table Conf Gleason and Hobbs 1 Chief among the conclusions reached suggestions were approved by the ad- in the occupational disease symposium visory committee more than two years Insurance lawyers from a discussion of the insurance law section ago They have recently been revised in the country were in Bostor American Bar Association meeting this several particulars and now embody a attending the third annual week in Boston was that any legislation number of departures from the earlier the Insurance Law Section o approaching a solution of the occupa- draft the result of much recent ex- ican Bar Association tional disease problem should contem- perience study and discussion thousand in attendance prevention plate special legislation for Coming to the meat of his address the the prospects of a fine two + along with special legislation for com- speaker then elaborated upon certain which included five round 1 pensation This point was made by essentials that he felt should be kept in ences on major legal proble Thomas N. Bartlett Maryland Casualty mind in the drafting and consideration ous lines of insurance As social one of the leading authorities on the of legislation having to do with occupa pated the report on subject and his amplification of it was tional diseases He discussed first the unemployment insurance s that when specific preventive and com- schedule vs. inclusive plan of cover- the opening morning's ses Life is enacted and be- age and said in parti . John Hancock Mutual pensatory legislation effective much of the present Inclusive provoked considerable inter Plan comes of the loose thinking confusion confliction and uncertainty Schedule vs. Characteristic jority report was adopted discussion It held the so with their resultant evils will be rem- that too often characterizes considera- in nine edied Mr. Bartlett is a member of the tion of this subject is the contention law unconstitutional Federal Act Maryland commission for study of occu- frequently made that the law should phases of the and that it held pational discases provide compensation for any and all matter it would be consti Lead speaker in the symposium occupational diseases in just that lan- whether although decl specification was Henry D. Sayer time indus- guage and without further state matter should be considered as a trial commissioner of New York State Thus we may have injected into the law to enactment only by who is now occupational disease con- a term occupational disease is ject in their own severa sultant of the Association of Casualty & not defined and the exact definition of states submitted Surety Executives Mr. Sayer consider- which is quite baffling The same result minority report L. Chicago defend ed the subject most appropriate for dis- is sometimes attempted by the simple Ekern of the act and cussion at a meeting of insurance legal expedient of striking out the words by tutionality be supported minds as it is the most fertile field for accident wherever they are used to Welcomed by Del legislation and court interpretation at modify the term injury This is on the the present time in the whole range of theory that compensation for the term In his address of welco workmen's compensation and employers injury should include injury by accident Commissioner Francis J. liability He was a proponent and one the administrators of the first occu- or by discase as distinguished from the limited term injury by accident Massachusetts pleaded for derstanding between the i of more pational disease law in this country and without distinction yers and the insurance namely that of New York enacted in Not infrequently I have heard the He outlined the position 1920 and therefore has had a first hand suggestion made in connection with the ance commissioners in ord opportunity to observe the law and to indefinite coverage provision that we ter understanding might evaluate some of the factors in it night well let the courts define what is Mr. DeCelles argued aga Other speakers all of constructive contributions whom to the made sym- an occupational disease May I with due that that is not the func- of rates by the insurance holding that he should ha posium included T. C. Waters of Balti- respect suggest Theirs is not the duty visory authority and the more chairman of the Maryland com- tion of the courts of making up the legislative mind nor of prove rates as just ade able and discriminato mission Dr. A. W. George roentgenoloand Dr. R. B. Hunt occupational making the definitions that the legisla The Discussions Thoughtful gist both of Boston ture is unable or unwilling to make The round table dis lung disease specialist interpretation N. Caverly president duty of the courts is marked by the thought Raymond timeli Fidelity & Casualty and John W. CronMutual not legislation As opposed to the vague indefinite I believe the speakers and topics The the symposium in general counsel Liberty scientific H. D. Sayer on Model Provisions plan of general coverage certain and more Territorial Application + In introducing the general subject be- fairer more plan of occupational discase coverage is the called schedule plan or listing in Compensation Acts for ified a number of legal pc Henry D. Sayer told about the study ing made of the occupational disease sit- the law of the diseases that are deemed been rather confusing intre uation by an advisory committee of the Ex- to be occupational To such a schedule be appended a listing of the proc- Employers Liability ject as follows Association of Casualty & ecutives which is headed Surety by Charles may conditions under which such Prior to the passage Deckelman of the Travelers This body esses or diseases occur industrially This latter compensation acts the ri ploye who sued his empl recognizes and assents to the principle that the death or disability of a work- I do not regard as wholly essential desirable from many viewpoints injuries received were det man from a disease which is clearly and though A list of the diseases covered and law of the place of th place of hiring was in unmistakably the result of an industrial in which he was employed and the processes in which they occur of certainty and has the might be brought anyw process the advantage could be obtained Prac not the result of a health hazard of the avoidance of much expensive and dis- tions of conflict of laws general population should be deemed to appointing litigation and it makes for | However workmen's Without be and treated as the happening of an efficiency of administration acts solely because of t injury by accident subject of course to special rules and procedure applicable such hood definiteness there is that in cases which grave likeli- excite sym- ~ torial provisions have such questions thereto due to its different nature pathy where death or lingering illness In 1913 in Gould's ( It follows as a logical consequence follows upon the contraction of some 480 which held that the said Mr. Sayer that such diseases disease of ordinary such for in- workmen's compensation should be brought within the purview of stance as pneumonia common colds ply injuries received c compensation laws where the employer followed perhaps by tuberculosis heart monwealth Chief Justice and worker interests in any state accept disease alleged as the result of long that such acts are it the principle The acceptance of such continued heavy work the ordinary dis say ate on injuries received principle of course means the assump- cases of a contagious nature which may eral states enacting them tion of a certain definite though limit- be epidemic in the community and many to many difficult quest ed liability on the part of the employers others employer may be held liable . of laws : and the renunciation by labor in return to compensate for such conditions and The Massachusetts : therefor of any right against the em- his insurance carrier required to as- thus restricted In 1927 ployer based upon negligence or fault sume such unknown and unknowable lia- to make it extra at common law or under any statute \ bilities I should fear that such a per- - plication Today pr^ctic In recognition of this principle our \ Continued on Page 34 pensation acts have ext advisory committee has given intensive plication differing how study to the provisions that in their L. T. ZEDLER IN NEW POST spect as to the extent 1 opinion should be embodied in any stat- Lorenz T. Zedler formerly connected These laws of the s ute providing compensation for occupa- with Chris Schroeder & Son Co. Mil- - widely diverse as to tional diseases These provisions have waukee has joined Kells & Hall Inc. juries or accidents comp been embodied in called model pro- of the Great cedure and in countles visions that are available for adaptation Milwaukee general agent Indemnity and special agent Largely they are admi 4 to the conditions presented in any state American of the Ohio Casualty and the Prudential missions When as a These called model provisions or Page 34 American Bar Ass'n Meeting Continued from Page 30 F provisions Possibly a longer time fi which to give notice should be provided for than in the ( case of accident : 3. Provision should also be made for those version of the compensation principle such an extension of the law to condi- 0 tions never contemplated would result in an eventual breakdown of the system or its conversion into purely paternalis- ti tic governmental based on relief system Un social need rather than on any rule of limited medical benefits problem from the legal liability 1 - Mr. Sayer emphasized that no system avail The medical 7 of employers liability can securely be based upon language so inclusive and complicated silicosis or vague that it may mean anything at all or practically nothing depending on the administrative policy Continuing further he said Occupational Diseases Defined Recognizing that local conditions may make it impracticable in some states to do adopt the schedule plan it may be un- nesosf avoidable to resort to an attempt to knowingly assumed define in general language what is meant by the term occupational disease We have given much thought to a satisfactory definition but without en- tire success It is easy to define dis- generally case and to define occupational But exposure conjoined they have vague implications occupational diseases and possibilities of endless extension and likelihood power intricate machi- uncertainties For those who must em- chemical because tools ploy such a definition I would recom- mend the following An occupational of worker disease is one arising from conditions of the risk that are characteristic of and peculiar he does to a particular trade process occupato tion or employment in which the en- ploye was employed or engaged This definition I believe will best stand scrutiny If fairly applied it will not include the discases of ordinary life that are only incidentally or speculatively related to some condition of the employment and it will include all those diseases that are truly occupational While the recent New York amend ment contains no definition the indus- trial board has ruled for the instruction of the referees that tional disease means the term a disease occupacharac- teristic of and peculiar to the occupation And the recent Rhode Island law . on the subject contains the definition in the exact language quoted above Accrued Liabilities Turning his attention to slow progres sion and accrued liabilities Mr. Sayer said Silicosis for example or any other pneumoconiosis creates problems unique in compensation practice It gives rise to the problem of called accrued liabilities This term which has come into common use in connection with this problem is really a misnomer since the condition denominated is neither ac- crued nor is it a present liability By it is really meant the accrual of a physiological condition a fibrotic condition of the lungs which is permanent but not necessarily presently disabling We speak of it as accrued because the con- dition already exists which may progress until actual disability or death ensues It is regarded as a liability because if and when it becomes actually disabling the employer is going to have to pay for it The accrued liabilities are what has made and is making compensation for silicosis so burdensome for the employer and such a spectre for the insurer The present assumption of responsibility for a condition brought on by years of experhaps almost entirely with and another employer or employers a liability that few can afford It is thor- employer oughly retroactive in this aspect Within the past year two notable - methods of the problem have been tried the called waiver provision of Illi nois and the transitory limited benefits in New York and Mr. Sayer went into detail on them He then discussed medi- cal benefits special medical boards diagnosis and other essentials as lows and fol- Medical Benefits subject of medical treatment Some states at present have provisions for unlimited medical benefits in cases of accident many of them however now limit medical treatment in terms of week's allowance or of total cost fable where medical are only justi treatment will be opinion weight of however , is that expert expert in simple un 7 treatment asbestosis medi- nothing dis- is fibrosis of the lungs is permanent and on effective palliative or remedy has been developed The case of the silicotic however presents an exceptionally fertile field for medical exploitation Some effective and reasonable limitation therefore should be placed upon medical benefits to protect industry against exploitation or against expensive notions that the disabled worker or his physician may indulge in A limitation of three months medical treatment with a extension of three months treatment is useful seems discretionary when and if logical Special Medical Boards and Diagnosis So many and so complex are the medical problems incident to the admin- istration of an occupational disease law and particularly those relating to dust diseases of the lungs that the ultimate determination of medical questions should not be left entirely to medi- cal administrative officials The sure diagnosis of silicosis its cause and its differentiation from some other non dustrial conditions presents many points of difficulty It has been said in England that the only certain diagnosis of silicosis is one made after death We cannot wait until after death to make such determinations They must be made during life Many simple and uncomplicated cases of silicosis may be presented where the diagnosis is comparatively easy and fairly certain Many other cases however will present the extremes of difficulty It is suggested therefore that there should be set up under any occupational disease law a special medi cal board to be composed of physicians of recognized standing and attainments in the field of diagnosis of occupational diseases Such a board need have no functions with regard to the determination and finding of medical facts but after such facts have been estab- lished such as the question of length of employment degree of exposure including both concentration and content of dust the presence or use of poisonous material and other facts in the occupa- tional history of the individual Then if there be any controversy the case should be referred to such medical board which shall have authority to make independent examinations and it shall render its opinion on the condition that exists the extent of disability the date of disablement and the relationship between the employment and the condition found Findings of such a medical board should be final and conclusive on the medical questions or if subject to review they should be disturbed only by the manifest weight of evidence Other Essentials Other essential points that should be considered include the following 1. Effective means must be provided for full and truthful occupational histories wherever re- quired means by the , it seems to me The most is to provide effective that no compensation shall be payable where there has been a false representation in writing as to previous disability from or exposure to the haz- ards of an occupational disease 2. The matter of time limitation should be given careful study The usual provisions for time limitations as to notice filing of claim etc. in compensation laws for accidental injury are not always applicable in laws for occupational diseases Notice of an occupational dis- cases in which disease may be an occupational a existing occupational aggravated or contributed to by disease : Prevention Stressed by T. N. Bartlett ThomasN. Bartlett ualty approached the angle that prevention Maryland Cas- of accidents is just important and should be urged h as forcefully and effectively as preven- a tive measures to safeguard the worker b and to keep him from contracting occu- F pational diseases The speaker empha- S sized It is just as humane and eco- nonically as sound to prevent accidents n as it is to prevent occupational diseases I yet we must not overlook at least one t very important factor to that a many accidents occur from careless- t the worker that undue risks are by the worker a that in some cases accidents occur be- Ni cause of violation of known instructions 2 and rules These accidents could have been prevented by the worker himself Such accidents however are compensable But in cases of 1 to there is more because of driven nery power intensified processes with their attend- at~t acute hazards the not having the least knowledge t which is assuming He not con- a tribute nor is he knowingly a party 1 party To the results 4 " believe occupational diseases can be controlled and prevented generally with greater certainty than the control and prevention of accidents Limited Physical Examinations In addition to the preventive meas- itres developed by engineers and doctors for safeguarding workers in all proc esses where there is an occupational disease exposure and especially in dusty occupations there is one important phase of prevention which should be carefully considered In the light of experience thus far developed there are some who deem it advisable that in a plan for compensation there should go hand in hand with all other safeguards to employes a provision ical examinations of who will be exposed to for limited physthose employes occupational dis- eases These examinations to be made when first applying for employment Then subsequently interim examinations at intervals of one year during employ- ment unless otherwise required because of special circumstances in unusual cases and examinations when leaving employment If a plan for compensation should require such examinations then they should be conducted by impartial medi- cal boards under the supervision and control of or in a bureau of industrial hygiene . Any legislation in an approach to a solution of the occupational disease problem should contemplate special islation for prevention along with cial legislation for compensation leg- speAll statutes which may now be in force for protection of health and which may be obsolete in the light of recent develop- ments should be repealed In order to be just and efficient and to comply with constitutional requirements all preven- tive legislation should be specific defi- nite and certain Legislative powers should not be improperly illegally delegated C. W. HOBBS CONVALESCING Clarence W. Hobbs special representative of the commissioners on the National Council staff who was operated on August 14 in Massachusetts Memorial Hospital Boston is reported well along in his convalescence He will be in the hospital another week Mr. Hobbs was missed at the Insurance Law Section of the American Bar Association this week in Boston where he was on the program As a part of any program for lim- case is somewhat more essential than is the case to discuss territorial Application ited compensation or waivers for sili- with accidents most of which are known or of Compensation Act It was read for cosis consideration should be had of the witnessed and it should be more definite in its him