I sat down this morning with a television reporter interviewing me about a horrific explosion in Wisconsin that killed 5 workers and injured many more. The explosion on May 31, 2017 at the Didion Ethanol Plant in Cambria, Wisconsin occurred when corn dust exploded, destroying the entire plant. OSHA hit the company with a $1.8 million fine, calling it a preventable explosion.
The reporter’s question to me was “Why can’t the employees sue their employer?” The answer goes back over 100 years in Wisconsin to the “Grand Bargain” that was struck between management and labor. Sometimes referred to as the “great tradeoff,” employees traded away their right to sue their employer, even for egregious safety violations, in return for wage loss and medical benefits to be paid regardless of fault. The goal was to relieve the injured employee from the burden of paying for medical care and replace lost wages. At the turn of the 20th Century, Wisconsin workplaces were often dangerous places, and employers had little incentive to make them safer. Injured workers could rarely afford the kind of legal cost for recovery efforts in court and employers benefitted by use of contributory negligence, assumption of risk and co-employee negligence as bars to an employee’s recovery in court.
The administrative system that was established by worker’s compensation was created to provide a direct remedy to the employer and to limit (by Exclusive Remedy) litigation against the employer. The system was supposed to insure a method of providing benefits to an injured employee during the period of disability and to ensure the employees were not reduced to poverty because of injuries.
Speed, dependability, and financial assistance were components of the new system, and by making employers responsible for injury, the law offered strong incentives to make workplaces safer. Unfortunately, that has not occurred. The latest statistics indicate that over 100 people die annually in Wisconsin and over 5,000 annually across the nation.
Revealing to a grieving widow that the remedy available is limited to four times the deceased worker’s annual income is precious little consolation for loss of a spouse’s life and lifetime income.