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I recently penned Reminded of Death Benefits, including a discussion of a tragic event in Michigan in which an employee was found submerged in a vat of acid solution. He was rescued and treated by co-workers, transported and treated by first responders, and later died from his injuries. It was a story that reminded of the limits of workers' compensation benefits, and of some challenges.
Expanding on that subject, today's focus is upon those who are so fortunate not to be the one who suffers the injury. There are many who may witness or even participate in recovery from untoward events in the workplace. As I wrote the post regarding the February 13, 2019 story of Mr. Hill, the news broke February 15, 2019 of a work-place shooting in Aurora, Illinois. Neither event is unprecedented, and many readers will see no commonality between a fall into acid and a workplace shooting.
But, the commonality is in those who survive such events. The Michigan death was tragic. Co-workers found Mr. Hill submerged in the vat of acid solution. He had suffered burns (possibly both chemical and thermal) over 100% of his body. The burns were serious, and Mr. Hill would later succumb to those injuries.
However, his co-workers were the ones that found him. Several suffered burns of their own reaching into the vat to retrieve him. They provided the first aid they could, placing Mr. Hill in a "safety shower" in an attempt to rinse the caustic from his body. Mr. Hill was still "walking and talking" when first responders arrived to provide treatment and transportation to the hospital, according to The Detroit News.
From an emotional standpoint, now, think of finding one of your co-workers in such a predicament. Imagine hearing the co-worker's complaints of pain, discomfort, and fear. Picture yourself providing first aid and care for your co-worker as you wait a seemingly interminable time for the professionals to arrive (even if they arrive in record time, it would perhaps seem like forever if you were there providing the care you could). Some co-workers reportedly suffered their own burns reaching into the acid to retrieve Mr. Hill, that is physical injury. But, what about emotional affects?
In Aurora, eleven people were victims of a workplace shooting. Five were killed; so was the shooter. As is so often the case, the shooter "illegally had a gun." There will be discussion of gun control and stricter laws, but in many instances our present laws are already being broken or disregarded in these situations. The shooter is dead. Reportedly, he "just been fired before he started shooting." It is a reminder that termination from employment can certainly be an emotional experience; For those who have never had to terminate someone, it is worth noting that firing someone is also stressful and emotional.
The shooter in Aurora, angry about his termination, appears to have re-entered the company facilities and taken retribution on those who participated in terminating his employment. Notably, the shooter had six prior arrests in Aurora and one in Mississippi. The authorities were summoned, and in the process of dealing with the shooter five police officers were also shot and wounded before the shooter was killed by the officers. I suspect shooting someone is stressful and emotional, even when doing so is to save the lives of others.
From an emotional standpoint, imagine being one of the lucky Aurora employees able to go home that night and hug your family. Some of them, however, may have questions in their minds of what they might have done to aid those injured or killed. There is a phenomenon called "survivor guilt" that afflicts some. Even in the absence of such a feeling that you could have helped, survivors face the loss of co-workers and friends.
In both Aurora and Michigan, there are workers this week who will struggle to deal with loss. They will struggle with what they saw, smelled, heard, and felt. They will deal with a spectrum of emotions and feelings that many of us fortunately will neither ever bear or perhaps fully understand. They will hopefully express their reactions, fears, and feelings to each other and professional counselors. But, they will likely be treated differently by the law.
As a people, we granted authority to our government. The Constitution of this Republic is a grant of authority to the government. The people and the states have given that authority, for what was intended to be specific and limited powers. Despite that sentiment and intent, our governments (state and federal) have grown and expanded their influences into our lives. I am persistently amazed at how many people forget (or perhaps never knew) that ours is a government "of the people, by the people, for the people." In the vein, perhaps anyone with criticism of the government should remember Walt Kelly's witticism "we have met the enemy and he is us."
One example of government influence is the institution of workers' compensation laws across this county. Though few acknowledge it, workers' compensation is one of the first, and perhaps the most successful, examples of "tort reform" in America. We did not invent it (that distinction goes to the Germans or the British depending upon your definitions and descriptions), but it now exists in all American jurisdictions as well as in various federal laws.
In a sweeping change to the U.S. Constitution, the Fourteenth Amendment was ratified in 1868, one of the "Civil War Amendments" that both ended slavery and set the stage for significant civil change in American society. A great deal of our societal progress in the twentieth century can find its roots in the Fourteenth Amendment, which is often referred to in shorthand as the "equal protection clause."
That label comes from the last phrase of Section One of that amendment that says no state shall "deny to any person within its jurisdiction the equal protection of the laws." There is a common sentiment and belief in America that people should be treated equally by the law. Despite this constitutional admonition, there are some who believe that some laws in fact do treat people differently.
Some see the disparity with which laws affect various racial groups and conclude flaws in equal protection. Some see disparity in political or electoral processes. Others see more general flaws in prosecutorial decisions. Anyone can agree or disagree with these or a raft of other arguments raised in the name of equal protection. One fact seems to be that Americans generally favor equal protection, but that there is a struggle to define what that means in various specific instances.
And, the "grumpy old men in the balcony" have by this point in the post begun muttering "what does this have to do with workers' comp?" There are far too many who forget that workers' compensation is a law, and in this country the foundation for all law came from the people and is embodied in the constitutions, state and federal. These establish government, define boundaries between branches, and provide checks and balances. These constitutions, in themselves, are a check and balance on government. The grumpy old men should remember that societal pervasiveness in their retrospection perhaps.
That long path leads us back to Aurora and Michigan. In each instance there are the victims that have passed away. Their families will be impacted by the methodology of the two states' workers' compensation death benefit structures. As pointed out in Reminded of Death Benefits, the families in Illinois and Michigan may be treated differently from each other. Workers' compensation depends upon state law, and each state's law has its distinctions. By virtue of being in Illinois versus Michigan, the worker's benefits may be different.
But what of those left behind? The truth is that employees with purely emotional injury may be treated differently from those with physical injury. There may be employees in both instances that perhaps suffered both, such as the police officers that were wounded and saw the disturbing scene or the coworkers that both burned their hands and witnessed Mr. Hill's condition. But, there may also be those who have no physical injury, but emotional injury or issues, and their state's law may treat them differently.
Some states do not afford workers' compensation benefits to those who suffer only emotional injury. These states engage an "impact rule" that predicates entitlement to workers' compensation on a physical injury. When such a physical injury results in emotional injury, these jurisdictions will provide care and benefits related to that resulting emotional injury, but not for emotional injury standing alone. In that, there are those who see an issue of equal protection. They see two employees in the acid accident, one who burned their hands rescuing Mr. Hill and another who merely helped, hands on, with his care and treatment while awaiting the professionals. Those two employees, one with a physical injury and the other without, might have their emotional injury treated differently in various states.
There are also a number of states, and the volume is seemingly expanding, in which people with certain occupations are treated better by the law than those in other occupations. In those states, a "first responder" like a firefighter, paramedic or police officer with no physical injury may be entitled to workers' compensation benefits for emotional injury alone while other employees are not. The law in some states presumes that a paramedic witnessing a shooting victim should be compensated for purely emotional injury, but that shooting victim's coworkers, lacking a physical injury, should neither receive compensation or treatment for their emotional injury.
In an incident such as the Michigan acid immersion, a first responder emotionally affected by the appearance and circumstance of Mr. Hill might be entitled to workers' compensation while a coworkers without physical injury may not be. In an incident like Aurora, a police officer or firefighter perceiving the wounded might be entitled to benefits, while a mere coworker without physical injury might not be. Some see equal protection concerns in such laws that elevate some workers to special status, and entitle them by law to benefits unavailable to other workers.
Certainly, the circumstances in either event may present sights, sounds, smells, and other sensory experiences that are disturbing. But, there are those who find it curious that among those without physical injury, the law would provide compensation and treatment for the professionals trained for such tragedy, but provide nothing for co-workers who: (1) knew the victim(s) personally, and (2) who will likely deal with the aftermath such as cleaning and securing a premises, and (3) will have to return to work in the same premises and have persistent daily reminders of the event, tragedy, and emotions.
In fairness, there is debate whether such discriminatory laws are permissible or appropriate. There are those who see no equal protection argument. Their logic is founded upon the nature of first responder occupations, and the parade of various horrors to which those employees are unfortunately too regularly exposed. Certainly, those people all rush into many situations from which the rest of us flee (fire, violence, etc.). Without a doubt there are good people who serve in these roles, and a societal debt for their services and sacrifices.
However, it is a fair point for debate. What is being covered for whom? Are there logical justifications for distinction? Should the laws treat people with common experience and exposure differently merely because of their job titles? Should the deputy in the Parkland high school parking lot be entitled to benefits for emotional injury, but not the school teachers and staff that witnessed the actual shooting, injuries, and death?
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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