Workers compensation laws were passed to provide a relatively quick and sure remedy for employees hurt on job in the innovative but dangerous employment conditions wrought by the industrial revolution. Employees did not have to prove negligence, just causation. In return, this grand bargain immunized employers from tort liability to employees in almost all contexts. In addition, while worker’s compensation benefits offered medical treatment the wage replacement benefits are limited and there is no noneconomic or pain and suffering compensation.

Workers’ compensation laws were not passed as method to protect employers from the risk of injury claims from employees. In the late nineteenth and early twentieth centuries, employers were well insulated from tort common law personal injury claims by a regiment of defenses including lack of duty, contributory negligence, assumption of risk and exculpatory employment waivers. See Fowler Harper, Fleming James & Oscar Gray, The Law of Torts, Introduction to the First Edition, (2nd ed. 1986).

In 1911, Wisconsin became the first state in the nation to pass a broad, constitutionally valid workers compensation law. In finding the workers’ compensation act constitutional, Wisconsin Supreme Court Chief Justice Winslow explained the motivation behind the law:

It is matter of common knowledge that this law forms the legislative response to an emphatic, if not a peremptory, public demand. It was admitted by lawyers as well as laymen that the personal injury action brought by the employee against his employer to recover damages for injuries sustained by reason of the negligence of the employer had wholly failed to meet or remedy a great economic and social problem which modern industrialism has forced upon us, namely, the problem of who shall make pecuniary recompense for the toll of suffering and death which that industrialism levies and must continue to levy upon the civilized world. This problem is distinctly a modern problem. In the days of manual labor, the small shop with few employees, and the stage-coach, there was no such problem, or if there was it was almost negligible. Accidents there were in those days and distressing ones, but they were relatively few, and the employee who exercised any reasonable degree of care was comparatively secure from injury. There was no army of injured and dying with constantly swelling ranks marching with halting step and dimming eyes to the great hereafter. This is what we have with us now, thanks to the wonderful material progress of our age, and this is what we shall have with us for many a day to come. Legislate as we may in the line of stringent requirements for safety devices or the abolition of employers’ common-law defenses, the army of the injured will still increase, the price of our manufacturing greatness will still have to be paid in human blood and tears. To speak of the common-law personal injury action as a remedy for this problem is to jest with serious subjects, to give a stone to one who asks for bread. The terrible economic waste, the overwhelming temptation to the commission of perjury, and the relatively small proportion of the sums recovered which comes to the injured parties in such actions, condemn them as wholly inadequate to meet the difficulty.

Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911)

McCormick Law Office in Milwaukee, Wisconsin.