Document jm0QDyvmnyBJ0EeEQKbajqaoO

FILE NAME: Saranac 7th Symposium (SSY) DATE: 1952 DOC#: SSY046 DOCUMENT DESCRIPTION: Text of Presentation by Unknown - As Industry Regards Partial Disability in Dusty Trades ------------------------ nnatcntflfl P articularly d iffic u lt problem - th^Mt^*** ca-ltt<B . C -P-- * - law. by a llie o sia , . -- 1. - ~ of certain . 4-halatlon, over long pcrlciU of ^ .u itln g * r ~ the u it ^ ^ ^ Itra to r, of th . U . au.t a . T h..e P ro b l.- .tandpolnt of the - l i d * **** * ** `I Z * c ry apedal -ay f t - * . ..ffcty eftSioMri and i a ***7 * profession, the oaf y u # t ^ a iy e la aa>at pay the whole standpoint of Industry. pricing of lta eo .t and tr y a . beat I t to c o lle c t auch coat f t the p ri in s product* or service. mr* pointed out > *-- * " I r n . . th e a if f lc u ltle a and haa -- - t U cooperated In try in g f theM tl e a l ,,iy f f a i r both to th . .o r * .r . and to Induatry. WSrk th " * n y to be h o a tll. to any f t - of conpenaatlon for :;r o .r J ^ X to th . worber. i tboae ~ d e . .here duct 1. Hoth^ eoul4 be fu rth e r f r o . t h . f a c t. A ctually, the reco r- 6 T L v o * State ha. h ^ . o u t a t ^ l n g In -orfeft, - t . d t h of industry u the .any d iffic u lt obstacle, s*t with labor and the public a u t h o r i t y ., the y nst * ^ dl" bT e d ^ h . X l l d U g th . creation too disrupting to the Induatrle. Invoiced, there y of widespread unemploy-ent. eOBpeMatlon law. C h a ra e te rla tle a lly , ***" ,, , for elataftg . atlicosia or other dust disea flU "0t ^ * ^ l0Ter. For that n a tte r, occupational d l a c compenaatlon f r o . .h a ra e te rla tlc one) were , , ^ leh .u i c o e l e le the M t f l u e n t end c h a r tc te r i.tlc cn > (of Which a lllc o a Probably th a t fact not d ire c tly provided for In the ear y . _ T-ofcdy. under the old eoanon law, r r ~reas.unlltteedd ffrroomm the want . of a reoeoy, coepensetion laws were atecaee v a u l tin g f r o . the occupation. Vhen c PC - 2- RECEIVED F.H.H&S DATE: ju l g jja z a " M.E.M amended s p e c ific a lly to include occupational d isease, dust diceate or the lungs was not included presumably because of the lack of under standing of the nature and causation of those conditions and the determ ination medically of them. I t took msny years of intensive study by medical and engineering researcher* to arriv e a t such m derstanding. Without express knowledge of the nature of the d isease, the kinds and substance of dusts - both as to p a rtic le s ite and concentration the length of time of exposure, the e ffe c ts of frequent changes of employment, the existence of lung pathology without marked e ffe c t on working a b i lit y or earning capacity, the vast d iffic u lty in many cases of evaluating d is a b ility and re la tin g i t to the occupation or a llo c a tin g the d is a b ility frequently among d iffe re n t employers by whom the worker has been employed under in ju rio u s exposures, lawmakers were moving in complete darkness in attempting to bring such conditions under the le v . They were met w ith the problem of d is a b ility . The p o te n tial cost of ill-a d v is e d laws was frig v ten ln g , both to industry end to labor. The cost of so -called "accrued l i a b i l i t y " , by which i s understood the cost of f u l l compensation to a worker fo r a dust disease th a t became d isab lin g a f te r the lav became e ffe c tiv e , although years of exposure had occurred, perhaps in the same employment, perhaps in other employments, created ft s itu a tio n unknown sad l i t t l e understood. Employers in trades where dust exposure was a necessary incident of the work could not view with unconcern the burden of possible l i a b i l i t y th a t niigit wreck th e ir business] labor could not take s chance of closing down the in d u stries on which th e ir livelihood depended and d riving them out of the S ta te . And y e t, a l l recognized the necessity of doing something about i t to get s ilic o s is and other dust diseases under the law In some form. - 3- RECEIVED F.H.H&S DATE: g t S j jflZq M.E.M F in a lly , a f te r some years of discussion th a t got nowhere, the subject was examined by the In d u s tria l Surrey Commission, created by the L egislature in 1926, and a b i l l was d rafted to bring s ilic o s is under th e law with provision fo r annual physical examinations of the w orkers, so th a t men wight be removed fre e the dusty exposure upon the early w anifestations of the disease* Speaking fo r ewployers generally, Kark A. P aly, Executive Vice President of Associated In d u strie s, agreed w ith th e Cossaission to accept th e b ill* the In d u stria l Commissioner, Hon. Frances Perkins, agreed th at the b i l l constituted a long step in the rig h t d ire c tio n . But the rep resen tativ es of labor n o tifie d the Comalsalon th a t they would oppose wost vigorously any b i l l th a t n&de provision fo r medical examinations as a condition of compensation. The proposal was thereupon dropped by the In d u s tria l Survey Commission. This was long before s ilic o s is or other dust disease was sp e c ific a lly mentioned in any s ta te coapenaation law. labor** p o sitio n , which was understandable, waa th a t the wen working in dusty employments and who had no other trade a t which they could work, should be allowed to continue th e ir work a t th e ir tra d e , so long as they were physically able to do so . They preferred f u ll wages to compensation. They were in s is te n t, and r i g i t l y so, th a t measures should be enforced fo r the control of duat. The employers were in complete agreement with th a t demand, provided the measures of control were p ra c tic a l and were not such as would reduce output to the point where employment in th is State could not survive in competition with industries in other non-regulated states. A ll of industry, including labor and manageraent, fin a lly * 5 ^ * ' in order to bring s ilic o s is under the law even though In an Incomplete form, but with the expectation th a t b en efits would ris e ee Industry got RECEIVED F.H.H&S ` "'- n.TC. fin % i B7L M.LM _ , in to the s tr id e , upon s la s by which in consideration of no physical or nodical examinations, but perm itting men to work and earn th e ir reg u lar wages, reduced compensation b en efits would be paid upon proof of f u l l d is a b ility , th a t i s , in a b ility to work and earn wages a t th e ir regular trad e; such benefits to increase in accordance with a schedule, as tie * passed and employment in a dusty trad e continued, the anoint of compensation being rela ted to the Increased exposure under the lew; no physical exanim tio n s to be required; adequate measures to be taken f o r the control of dust and the necessary engineering studies to be c a rrie d out promptly; end no compensation to be payable fo r p a rtia l d is a b ility . That law was enacted in 1236, and since th a t tin e benefits have increased, both under the schedule and by agreed le g is la tio n , a f t e r the top amount s e t in the schedule had been reached, bo th a t now b e n efits fo r Toll d is a b ility equal those fo r any other condition under the Compensation Law. I t was not by inadvertence th a t the new law made no provision fo r b en efits to workers c la iming fo r p a r tia l d is a b ility re s u ltin g from s i l i c o s i s . Such b en efits were excluded because of the lnnereat d if f ic u ltie s in determining thd evaluating p a rtia l d is a b ility in such cases, and because i t was deemed e s s e n tia lly unreasonable to charge upon in d u stry , and thereby the buying public, en unmeasurable burden of cost for a condition that is not disabling in the sese that i t deprives the worker of h is wage earning capacity. Let us consider some of the c h a ra c te ristic s of p a r tia l d is a b ility , so -c a lle d , in s ilic o s is and certain other dust d iseases, and why i t does not lend i t s e l f to accurate determination or evaluation under compensation laws. - 5- DATE: M.E.M F lr tf l e t ae say th a t the basic p rin cip le of a l l compensation laws i s d is a b ility or death, B7 d is a b ility i s \nderstood in a b ility to work and earn wages. Compensation was provided as a percentage of the lo s t earning capacity to m ia ta in the Injured person and h is fa n ily . Much confusion of thou^it occurs when we tr y to c la s s ify as a "d isab ility " serely a physiological fa c t co n stitu tln g possibly an impairment of function, but not necessarily co n stitu tin g a ber to earning f u ll wages. Sane are prone to consider a physiological uefect the saxae as a compensation disablement. The Kcw Tort: Vor.aer*1s Conpensatba law in Section 37, re la tin g to occupational disease, defines a coapensable d is a b ility ac a "disablement" which prevents the worlcer from earning f u ll wages a t h is trade or occupation. The condition of s ilic o s is i s one c h a ra c te ris tic of working fo r years in employments where s ili c a dust is generated or present. The dust, to be harmful to the human body, must contain p a rtic le s under a c e rtain microscopic size and in a s u ffic ie n tly large n b e r . V.'e commonly find workers in such dust exposures showing d e fin ite evidence of s ilic o s is , both by X-Ray and by c lin ic a l findings, and yet they are working reg u lar hours and earning f u ll wages, the earns as those who do not exhibit the conditions. The doctor c o rre c tly t e s t i f i e s th a t the nan has s i l i c o s i s , but in view of the fa c t th a t the person is wor/Jng and earning f u l l wages, he cannot say th a t he i s "disabled*'. I f he cannot work ani earn wages, he i s to ta lly disabled, and in any such case he is unquestionably e n title d to fu ll conpensavion benefits as a l i f e pension i f the condition i s c la ss ifie d as permanent, and as temporary to ta l d is a b ility when the condition is not so c la s s ifie s . Then again, there is the w ell-nigh im p o ssib ility of ev a lu a tin g -6- RECEIVED F.H.H&S DATE: . ]p, c ' 5 0 f<6 M.E.M 1 the degree of p artia l d isa b ility in duet condition, of the lungs. 1 , * to ld by aed leal ex p ert. t h . t there 1. no standard and no way of te lli n g by X -~ y the degree. I f any, of p a r tia l d is a b ility . Ken showing . marked . l l l e o . l . by X-ray 7 not have any c lin ic a l signs or .y=?t=ns of the condition, while other aen .hewing very l i t t l e r no positive .ig n . by X-ray, aay nonethele.. have sever. complaints and ahortneas of b reath and alleg e an In a b ility to ear* Toll wage, a t th e ir oooupatlon. t the etoneyard, o u tlin e end p o lic in g sto n e, a t the S t a r ' s bench or in the fotodry, netting a rock d r il l In the tunnel or In the Quarry, i f a&n work they earn Toll wages; th e unions see to th a t, I f the e.aplo^rs do n o t, and th ere le no 113* wart o r p a r tia l a b i_li_t_y t.o w__o_rk_. 7WhU/ekrajeh. ere cnlv two c la .e s of non - thoae who are able to tod do work, a those wlo are disabled and are thereby e n title d to M il c e p e n s a ti* .. It h a. been urged th a t employers are disinclined to h ire ne. .h o are known to have any degree of s ili c o s is , even th o u * not a t the tin e disabled. I t has been said th a t the fear of the east to then of paying M il compensation b e n e fits, In ease the nan la te r b eeo r.. 7 d isab led , bars such a from g ettin g ^ n a t i v e * * u . d i . no. lee3 to us well founded. Yet. we approved and agree:, to a b - 1 . enacted a few yeare age. whereby the eventual to ta l d is a b ility due to S ilic o s is or other duet disease was deemed to be in the nature of a second Injury and so the l i a b i l i t y of the employer In such a ease is lhf:red in *7 the Sp pecial *wliieaabtiilliivtyy - on , to tfhich t i l employers co n trib u te r e a d i e s * of whethar or not they have any eases th at are parable out of the Fund. Since Xew York S tate led the way in a constructive end. _p_rtarLcstrincea^l to meet the problem:- p?eMRt6C c i l i e o s l s and sim ilar co n d ition s, and sin ce In I t . i n t a t o . t r , has cooperated fu lly and he. agreed with the program, we tak ' - 7- RECEIVED F.H.H&S 5 0 3 ? pride in the accogpllshrsente o f the Hew Tork ^ c l t l ^ u r e Ae I have pointed out, however, the question of compensation for p a rtia l d isa b ility fraa ailieo eia presents d iffic u ltie s that to us aeea to be insurmountable. Vhen attem pting tc eurmout one d iffic u lty , we find th a t thereby we nay increase the d if f ic u ltie s presented by an o th er. I t i t In th is f ie ld th a t we fin d the n ecessity of keeping c le a rly in nind the d istin c tio n between a physiologic or anatomic defect or so-called "d isab ility ", and the d is a b ility th at prevents wage earning. The one present physical discomfort and even s Iw ered v ita l capacity, without loss of earnings, while the other presents the actu al in a b ility to work, re su ltin g in loss of earning* - & other words, an economic loss such as the compensation laws a l l seek to in d e m ify . To compensate fo r e bodily in ju ry which does not involve a reduction of wage-earning capacity, is to warp the compensation system Into something approaching damages recoverable by actions a t lew. I t may be said by those who urge compensation fo r p a rtia l d is a b ility in s ilic o s is th a t th is 1e no d ifferen t than the fix in g of the schedule payment for loss or loss of ure of a member. In every case of a schedule loss of a member, however, i t i s necessary to make a finding th a t the condition presented has reached i t s nexlBun Improvement and th a t i t is a permanent lo se . Hot to with p a r tia l d is a b ility from e ilic o s is . In stead , we E ttic ip a te th a t tr.e condition w ill become worse, and i f the worker ecsitinues in the same c r a s in ila r occupation, we look fo r eventual to ta l d ie a b ility , wh.ic.. w ill be permanent. In c o n s i d e r i n g th is problem, we rruat keep in mini another d istin c tio n . P ertU l iic a tllit;- , fclls-rinr, t traurntic in ju rr. u r - 8- RECEIVED F.H.HSS DATE._ J | II w . w n , MEM 1 enertlly following a period of to U l dU abU tty, a * the p M U ' srwS ' ^ U s a b ility > o .t oftan 1 . rtduead by t h . U p w of t l x end the .f f e c t of h ealin g ,u n til fin ally I t dlaappaart wholly. Th. trend of p a rtia l d is a b ility In d u .t e a . 1 . t h . other way, I t never become. l . . a , I t can only change fo r the worae. Another th in e , a t what point d o .. e?enble p a r tia l d is a b ility hesln? In t h . e a of traum atic In ju ry o r of an a e u t. oeeupatlonal d l.e a a a , w. hav. a point before which no rtcognizable eonpenaabl. condition can a x la t, th a t la . the date of the Injury. In th . ea.e of a i lle o a la , we have a .lowly p ro g rte.lv e condition. As generally seen, e l l l c o .l i or aab e.to al. la found to e r t . t only a fte r the looe of a long tin e , frequently many y e a r.. The length of tarn -ay be a ahorter or longer period by rta.c n of th . e u .e e p tib illty of the Indlridual, the rind of d u s t, the .1 * . of p a r tic le , and the number of p a r tic le , found in the atmosphere. hla m y vary from one employment to w e th e r and nost o ften doe. not a l l occur In a .In g le employment. J u s t when a worker may .how the c h a ra c te ris tic X-ray smrklng. or the disease la d i f f i c u l t to d lsc o re r. C ertainly, they w ill not be dlacovertd t l l too la te u n i . . . Physical exam tetlon. are made p e rio d ic a lly . *U1 elalm be m d . a t the f i r s t sig n , of dust by X -rty, or by a reduced v i t a l capacity of the lungs , and i f .o , w U l an award be made? And I f Bade, how WUl the percentage lo a . ef waa be meawred? V ill an award close th e caee or m y I t burtequently be reopened end a fu rth e r .w art cade? and I f then to ta l d l.a b U lty eventuates, w U l c re d it be given a f l o a t t h . to ta l d lm b U lty award fo r the amount or amounts already psid on the condition? V lll the employee be benefited by an award f o r - p a r tia l d ls s U lty ? I th in k n o t. Tn the f i r s t place, once a man h a . been o f f ic ia lly a d j u d g e d - RECEIVED F.H.HSS . _____ 9 DATE: J W i . io7o a o 'y y M.E.M t , b e l a l l l c o t l c , w ill be be employable? BardI t '. An employer whose operation* creete dust w ill be q u ite m llk e ly to il employment to e aan who hee alreedrbeen found, by msdieal evidence end en o ffic ia l decision of the re fe re e , to have s ilic o s is . I t Is quite lik e ly th a t the o ffic ia l board way d ire c t th a t such person s h a ll not retu rn to a dusty trade on a penalty of losing a l l subsequent rig h t to compensation fo r a to ta l d is a b ility . And In lik e clrcu astan ee, any other employer w ill h e s ita te a long time before h irin g such an o f f ic ia lly stanped s i l i c o t i c . More over, few men who have worked a t a dusty trade fo r many years w ill re a d ily be adaptable fo r work in a new and d iffe re n t tra d e . Experience has denonstrated tlses and tin e again th a t men da not re a d ily change occupations when they have learned a tra d e . Shis fa c t has been .ecognised fro a e a rly tin e s , as w itness the old saw th a t goes "Shoemaker, stick to thy la st." And what of the e ffe c t upon the worker who su b sits to examination and 1 . then found t o be In a o dgre. a .U le o tlc T Would I t surprise anyone I f euch e person became lsn e d ia te ly depreesed and u tte r ly discouraged? Would he not be lik e ly to fe e l th at he haa been condemned to e a rly to ta l d isa b ility am death? w ill any poaelble benefit of the law outweigh the seriously depreselng effects of the o f f ic ia l ed ju d leeti of h ie disease? Doctors m ercifully t r y I th e lr PMeaM to ' knowledge of s f e ta l and malignant condition when they find one. How many earns are there of persona who take th e ir liv e s , beeauss of .= r e a l o r fancied desperate condition? Would the meager cospencatlon bene m e . whatever they might be, make the Compensation Law a kindly one by robbing the worker of peace of mind? There are no e t a tlr t le s av ailab le as to the number of men who may RECEiVI ao D A T E :. M.E.M p o te n tia lly be c la ix ts m der any lav th a t protttes fo r p a rtia l d is a b ility fo r s ille o a ia . Thera Is no possible way fo r industry to make an estim ate, w ithin reasonably accurate fig u re s, of the eost cf compensating fo r aueh p a r tia l d is a b ility , except by the alow and laborious process of haring a l l swn In c e rtain Industries examined by X-ray, which labor hae always fo u g it ag ain st. I know nothing about the making of ra te s fo r Insurance under the Compensation Lav, but Z can w ell langinc th a t th is new fie ld of p a rtia l d is a b ility would create great d if f ic u ltie s in the way of insurance, and would be co stly to the industry to the extent of serio u sly , and I mean s e rio u s ly , hampering Kew York employers in meeting the competition of other etates.