Kansas Historical Quarterly

The First Kansas Workmen's
Compensation Law

by Domenico Gagliardo

     IS it safe to work? Statistics show that each year thousands of workers are killed and hundreds of thousands are maimed. The cost to society of these accidents is great and the burden on the dependents of the unfortunate victims is heavy. Two systems for distributing that burden have been devised. The common law, the older of the two and happily now largely superseded, provided that injured workers, and dependents of those killed, might recover damages if they could prove that their employers had been guilty of negligence, that they themselves had not assumed the risk and had not been guilty of contributory negligence, and that the injury was not caused by a fellow servant. Modern industrial technology made this law a hollow mockery. Attempted modifications to adjust for changing technology, while helpful to some extent, proved generally futile. A new method, known in this country as workmen's compensation, was devised. In this new system the question of negligence, whether of the worker or employer, is no longer important. Compensation for accidents is paid without respect to fault and the amount paid is proportionate to the damages suffered. Germany led the way in 1884 and the rest of Europe soon followed.

     The American movement for workmen's compensation was late in developing and gained its first momentum in 1911 when laws were adopted in ten states. Kansas, although not an industrial state, was among the very first to act. Of the compensation laws now on the statute books, those of Kansas and Washington were the first to be enacted, both being approved on March 14, 1911. [1] The Kansas act, however, did not go into effect until January 1, 1912. Nevertheless, of existing state acts, only five were made effective before that of Kansas, and two others became effective on the same date. [2] Because it was one of the first to be enacted, a study of the Kansas law throws some light on the nature and development of the American compensation movement.

     Strangely enough, there had been practically no agitation in Kansas for a compensation act prior to its passage. Organized labor was struggling for an improved employers' liability law, and the desirability of compensation was not even mentioned in the reports of the Kansas Federation of Labor's legislative committees until the August, 1910, convention. [3] The American Federation of Labor had, of course, already gone on record in favor of compensation. A "state council" of the National Civic Federation was organized in Kansas in June, 1910, and Sim A. Bramlette, president of the Kansas Federation of Labor, was a member. At the organization meeting many topics were discussed, but uniform legislation and workmen's compensation received the greatest consideration. [4] That much interest in workmen's compensation was being manifested by leaders in the legal and other professions became evident. In his report to the 1910 convention, Mr. Bramlette recommended that the convention should resolve for the appointment of an investigating committee similar to that of New York, and that the federation should strive for the passage of a compensation act. [5] The recommendation was adopted. But events were moving rapidly, and instead of remaining content to strive for an investigating committee, organized labor proceeded to secure pledges from candidates of both parties to enact a compensation law during the 1911 session of the legislature.

     When the legislative session was well under way, several compensation bills were introduced. Partly because other important proposals were pending, such as suffrage, initiative and referendum, public utility regulation, inheritance and corporation taxation, but largely because of political dissension with its consequent wrangling, squabbling, bickering and maneuvering, workmen's compensation received little attention. The governor felt obliged to send a special message reminding the legislators that both parties were pledged to enact a compensation law. He urged action. [6] The house and senate appointed a joint committee on labor to prepare a common bill, and that committee held hearings for an entire week at which representa

tives of employers and employees made known their wishes regarding compensation and also regarding a general employers' liability law. Representatives of labor favored both; representatives of employers opposed both. [7] It was reported that the joint committee informed the employers' representatives that one or the other of the two bills would be passed, offered them their choice of the two, and that they chose the compensation bill as the lesser of the two evils. [8] Opposition by the employers practically disappeared when the committee made the compensation act elective rather than compulsory. There is reason to believe that organized labor would have been satisfied with a general employers' liability law. [9]

     A bill was prepared by the joint committee and introduced in both houses. [10] The provisions seem to have been agreed upon by representatives of unions and employers. [11] In the house, the bill met with so little opposition that the commissioner of labor was "fined" a barrel of apples because of the "extreme courtesy" shown the measure. [12] However, the house amended the bill to make it applicable only to employers of fifteen or more, rather than the five specified.

     In the senate there was some opposition to the committee bill. A faction attempted to substitute for it a bill establishing a commission of seven, consisting of one senator, one representative, two workers, two employers, and the commissioner of labor, to investigate thoroughly the entire subject of workmen's compensation and employers' liability and report its findings and proposals to the 1913 legislature. [13] A compromise was finally effected by adding to the committee bill a section providing for such a commission. [14]

     Each house passed its bill with amendments, and with substantial

majorities. The principal points of divergence were the fifteen-man limit inserted by the house and the provision for an investigating commission inserted by the senate. Three conference committees were appointed and each agreed on a compromise, but the house consistently refused to modify its stand. The senate finally acceded completely to the house, and the bill was approved on March 14, the last day of the legislative session, with the fifteen-man limit and without the investigating commission.

     The measure was bitterly attacked by labor leaders. The president of the Kansas Federation of Labor and the chairman of the legislative board of the Brotherhood of Railway Trainmen wrote that it was "ineffective," an "insult to labor," and that farm leaders had displayed "total disregard for the masses and thereby affirmed their allegiance to special interests." [15] Their criticism was directed specifically and solely against the clause limiting the act to employers of fifteen or more workers. The editor of the Appeal to Reason, national Socialist weekly published at Girard, was equally bitter. The law, he wrote, was not a "workingman's bill," but a measure behind which corporations could hide whenever it suited their purpose. [16] Indeed, he continued, the workers had really lost the protection previously granted them by common and employers' liability law, and if the workers now wanted "justice and economic freedom they must go to the ballot box and vote the Socialist ticket." [17]

     Not so gloomy a view was taken by the state commissioner of labor. The limited scope was a disappointment to him, but considering the "immense advantage" of such a "humane system," the law was a step in the right direction and it would be improved by future amendments. [18] Officials of the American Federation of Labor wrote that Kansas unionists had done "themselves proud" in securing the law's enactment. [19]

     The act applied only to injury by accident arising out of and in the course of employment in certain especially dangerous occupations conducted for business, trade, or gain. [20] These occupations were enumerated as follows: railroading, manufacturing, mining, quarrying, electric, building and engineering work, laundering, natural gas plants, and all employments in which dangerous explosives or inflammable materials were used. very broad definitions of the occupations were laid down, and they included detailed enumeration of particular kinds of plants covered.

     However, the legislature believed that the necessity and reason for the law existed only with regard to employers having a considerable number of employees. The act was therefore made applicable only to employers of fifteen or more workmen. Employers of fewer than fifteen were permitted to elect to come under the act, in which case their employees were included, unless they served notice to the contrary. Accidents in businesses or employments engaged in interstate commerce and not subject to state legislative power were, of course, excluded. [21] Compensation was not made the exclusive remedy. [22] Where an

accident was caused by the proximate negligence of the employer, directors, managing officers or agents of the employer, or partner, or member of the association, but "excluding the negligence of competent employees in the performance of their duties or of the employer's duty delegated to them," the injured employee or his legal representative could elect to sue for damages or to accept compensation under the act. [23]

     In order to forestall some possible abuses, several safeguards were written into the law. If a worker deliberately injured himself, his employer was not liable to pay compensation for that injury. Failure on the part of the worker to use safeguards or protections against accident required by law and provided for him, or reasonable and proper guards and protection voluntarily furnished by the employer, also relieved the employer of liability. As interpreted by the state supreme court, this condition is not necessarily fulfilled by mere voluntary and intentional omission, but "includes the element of intractableness, the headstrong disposition to act by the rule of contradiction." [24] Accidents resulting solely from the worker's deliberate violation of statutory safety regulations were not compensable. If a worker was intoxicated when injured he was not entitled to compensation.

     Like most of the American compensation acts, the Kansas act of 1911 was elective for both employers and employees. [25] Employers electing to come under the act were required to file a written statement to that effect and the election was binding for one year and automatically renewed for one-year periods unless withdrawn by written notice. Every eligible employee was assumed to elect unless written notice to the contrary was served upon the employer before

injury, and change in election was permitted only after written notice to the employer. Any contract requiring an eligible employee not to elect was declared to be void.

     An ingenious method was devised to induce recalcitrant employers and employees to accept the act. For employers electing not to come within the act, the common law defenses of assumption of risk, fellow service, and contributory negligence were abrogated, but contributory negligence was to be considered by the jury in assess ing the amount of recovery in suits for damages. The common law defenses were allowed against employees electing not to come within the act, but not in cases where injury was caused by willful or gross negligence of the employer, his officer or agent, or where they were not available at the time of death or injury.

     The amount of compensation allowed in case of death varied with the extent of dependency involved. If anyone wholly dependent upon the earnings of the deceased survived, compensation was three times the earnings of the deceased during the preceding year, with a maximum of $3,600 and a minimum of $1,200. But if the dependents were not "citizens of and residing at the time of the accident in the United States or the Dominion of Canada," compensation was not to exceed $750. [26] In case no dependents survived, compensation was only for the reasonable expense of medical attendance and burial, not exceeding $100. Where death followed as the result of an injury, compensation payments already made as a result of that injury were deducted from the total compensation allowed for death.

     No distinction was made between temporary total disability and permanent total disability, and compensation for disability of any kind was payable only after a two-week waiting period. For total disability of either kind an injured workman received fifty percent of his average weekly earnings, but not less than $6 nor more than

$15 per week, for a period not to exceed ten years. [27] For permanent partial disability a workman was allowed payments amounting as nearly as possible to fifty percent, but not less than twenty-five percent nor more than fifty percent, of the difference between earning before the injury and the amount the incapacitated person would be able to earn in some suitable employment or business after the injury, with a maximum of $12 and a minimum of $3. But if he was under 21 years of age when injured and his average weekly earnings were less than $10, then compensation was not less than seventy-five percent of this difference. [28] The period during which these payments could be continued was not to exceed ten years.

     Compensation payments to injured workmen were made at the same time, place and manner as regular earnings, but a judge of any district court having jurisdiction could, upon application of either party, modify this regulation in a particular case as he saw fit. Such payments were not assignable or subject to levy, execution or attachment, except for medicine, medical attention or nursing. No attorney could get an enforceable lien against them for services rendered in securing the indemnity unless his claim was approved in writing by the judge before whom the case was tried, or if there had been no trial, then by any judge of a district court.

     After payments had been made for not less than six months, the employer was permitted to redeem his liability by paying a lump

sum equal to eighty percent of the amount remaining due, and this amount was determined by agreement, or failing agreement, by a district court judge having jurisdiction.

     Three methods for determining the amount of compensation due were provided: by agreement between the parties, arbitration, and action in court. The simplest of these methods, and the one most frequently utilized, was the agreement. What usually happened in practice was that the worker accepted whatever the employer offered in settlement. Failing agreement, the parties could arbitrate. Standing committees representative of workers and employers were authorized to settle disputes arising under the act, [29] or to select an arbitrator for the purpose if neither party objected. If no committee existed, or either party objected, or if the committee or arbitrator failed to settle the dispute within sixty days after the date of the claim, then it could be submitted to a single arbitrator agreed upon by the parties, or to an arbitrator selected by any judge of a court where an action might have been maintained. Consent to arbitrate had to be in writing and signed by both parties, and it could limit the time within which the award had to be made as well as the arbitrator's fees. Only the question of the amount of compensation involved could be decided, unless other questions were expressly referred.

     Any agreement or arbitration award could be modified at any time by a subsequent agreement, or by a court at any time after one year upon application of either party, on the ground that the incapacity of the worker had subsequently either increased or diminished. Application was to be made to the district court having jurisdiction, and unless both parties consented to arbitration, the court could appoint a physician to examine the worker and to report, and could on the basis of this report, after hearing the evidence of the parties, modify the agreement or award. This provision did not apply to judgments obtained in court actions. [30] Any agreement or award could be canceled by a judge of a district court having jurisdiction upon application of either party, if the worker had returned to work and was earning approximately the same or higher wages than before the accident; if the award had

been obtained by fraud or by undue influence; if the committee or arbitrator acted without authority or was guilty of serious misconduct; if the award was grossly inadequate or excessive; if the employee absented himself from a reasonable medical examination; or if the employee had gone beyond the boundaries of the United States or Canada.

     Failing agreement or arbitration, the worker's right to compensation was determined by action in any court of competent jurisdiction. [30] But jury trial was waived unless either party to the dispute demanded a jury with his notice of trial or when the case was placed upon the calendar. If in an action of this kind judgment was for the worker, compensation was either in a lump sum, with interest on payments over-due, or, in the judge's discretion, in periodical payments. All actions of this kind had to be brought and maintained in Kansas. Cause of action accrued at the time of accident, and time limits ran from that date. All attorneys' fees were subject to the approval of the court. [31]

     If a worker feared for the security of his compensation payments, he was authorized to ask judgment against the employer for a lump sum payment equal to eighty percent of the amount due and unpaid and prospectively due under an award or agreement, and the court, after examining the worker under oath and if satisfied that he actually doubted the security of his payments, could render judgment for that amount. But if the employer gave a good bond as security for payment, the judgment could not be executed so long as the proper payments were made. Proceedings of this kind could be stayed by a bond as above or a certificate of an insurance company showing that the payment of compensation was insured. Both bond and certificate had to be approved by the court.

     In order to prevent malingering, an injured workman was required to submit to examination by a reputable physician selected by the employer, but not oftener than once in two weeks unless ordered to do so by a proper court or judge. The injured workman could have his own physician present to participate in the examination, and unless he was permitted to do so the employer's physician was barred from giving evidence in any dispute as to the injury. In case of dispute, the arbitrating committee, arbitrator, or district court judge, was authorized to employ a neutral physician at the expense of the parties involved, upon petition of either the workman or employer or of the dependents. Refusal to submit to a physical examination deprived the worker of his right to compensation during the period of refusal. [33]

     Provision was made for alternative schemes. Any employer having a scheme of compensation benefit or insurance for the worker providing scales of compensation "not less favorable" to the worker and his dependents than those laid down in the law could, upon certification by the superintendent of insurance "by and with the advice and written approval of the attorney general," substitute his scheme for the one provided by law, and would become liable in accordance with that scheme. Where the workers contributed to the scheme, then extra benefits at least equivalent to the amount contributed by the workers had to be provided. The superintendent of insurance was authorized to revoke such certification for valid and substantial reasons.

     Thus Kansas was launched on her attempt to substitute a better method of compensation for accidents than that afforded by the antiquated system of employers' liability. The ideal was to provide benefits without suit or proof of negligence on the employer's part and by making this compensation certain to relegate the shyster damage-suit lawyer to the limbo of curious antiquities, and to standardize compensation for comparable injuries. But this attempt . fell short of the ideal, as a comparison of the act with various standards will show.

     The act was modeled after the bill recommended by the National Civic Federation for common carriers by railroad, but there were important differences. [34] The model bill recommended four years' earnings with a maximum of $3,000 as compensation for death, whereas the Kansas act allowed only three years earnings, but a maximum of $3,600. For partial or total disability the N. C. F. bill recommended fifty percent of earnings with a maximum of $10 weekly for a maximum period of ten years, and the Kansas act allowed twenty-five to thirty percent, with a maximum of $12 and a minimum of $3, for no longer than ten years. The Kansas act made no provision whatsoever for medical aid, while the model bill recommended a maximum of $100 in a given case. It is a curious fact that the early movement was so little concerned with the immediate and fundamental problem of medical care for the injured. There is no evidence, at least in Kansas, that the medical profession felt any interest or responsibility in the matter. The model bill was compulsory, and this was true of the Kansas bill at first, but before it was enacted the elective feature was incorporated.

     Compared with the standards set for compensation laws by the American Association for Labor Legislation in 1916, the Kansas act was quite deficient. The standards suggested a compulsory law including within its scope all except casual employments regardless of the number of workmen employed and all injuries and deaths arising in the course of employment, including occupational diseases. The Kansas act was elective, applied only to certain employments enumerated as especially hazardous, and to injuries arising "out of" as well as in the course of employment, and excluded occupational diseases. Perhaps these limitations can be excused in a first act. The constitutionality of a compulsory act had not been decided, and but little was known of the nature and extent of industrial accidents. It is true also that the term "accident" has been liberally interpreted by the Kansas supreme court, that the problem of occupational disease is not relatively important in this state, that the task of applying such a provision is difficult, and that all of the early laws had a similar exclusion. Furthermore, the standards provided that the remedy of compensation should be exclusive, while the Kansas act permitted the worker to sue for damages or elect compensation where the accident was caused by the proximate negligence of the employer.

     The scale of benefits set up by the 1911 act was distinctly inferior to that suggested in the standards. First of all, medical, surgical, hospital services and supplies were not provided. The waiting period was two weeks, twice as long as the maximum recommended. Compensation in case of death was rather rigidly limited, and careful graduations for various kinds and degrees of dependency in the standards were not provided. Here again it was difficult to move forward rapidly over unknown and uncertain ground, but more could have been done had the movement been well organized and the problem well analyzed. Furthermore, dependents not citizens of and residing in the United States were discriminated against. And employers were allowed to commute death benefits at eighty percent of their liability rather than at the present value at four percent. [35]

     Compensation for total disability was only fifty percent of earnings before injury rather than the sixty-six and two-thirds percent suggested, and the weekly maximum was only $15 rather than $20, although the minimum was $6 rather than $5. The Kansas law established a maximum period of ten years for both permanent total and permanent partial disability benefits, while the standards suggested no limit. Compensation for permanent partial disability was even less favorable, it being as nearly as possible fifty percent of the difference in earnings before and after injury, with a weekly maximum of $12 and a minimum of $3, rather than the sixty-six and two-thirds percent, with a maximum of $20 and a minimum of $5 per week suggested.

     In still other respects the law of 1911 was defective. There was no provision for insuring the payment of compensation. Many injured workers with just claims for compensation were unable to collect their payments because their employers had not insured their risks and they were financially unable to meet their obligations. [36] It was only in 1927 that the Kansas law was partially modernized in this respect. Court administration, which was slow, costly and clumsy, was not superseded by commission administration until 1927, consequently the procedure for settling compensation claims was not satisfactory. [37] Indeed there was a noticeable tendency for injured workmen to receive less compensation than the law allowed

for their injuries, and often it was only after costly litigation that full compensation was obtained. And, not least important, there was no satisfactory provision for full and accurate accident reports. This deplorable lack of interest in adequate accident statistics was not peculiar to Kansas, but was a general phenomenon.

     Despite these deficiencies and the bitter criticism of some labor leaders, there is reason to believe that the Kansas act was on the whole about as good as labor expected. Frank Gilday, state mine inspector and secretary of the Kansas Society of Miners, published in December, 1910, an outline of a proposed compensation law for miners .38 For fatal accidents, he proposed fifty percent of average earnings for four years and estimated that this would amount to a maximum of about $2,200. For "permanent injuries," he proposed fifty percent of average earnings for ten years, an estimated maximum of about $2,750. Temporary total disability was to be compensated at fifty percent of average earnings, an average of $23 per month. A waiting period of two weeks was proposed. There was no minimum limit on the number of employees, and employers would have been required to insure their risks. Nothing whatsoever was said about medical care for the injured, or administration.

     Gilday noted that some miners would prefer an employer's liability law, but he believed that a compensation law was more equitable, fair, just and beneficial, because it meant compensation without a lawsuit. However, he would have permitted a worker whose injury resulted from the employer's negligence to sue for damages. 38. Printed letter to officers and members of local unions of coal miners, dated November 1, 1910. A copy will be found in the "Official Letters of Gov. W. R. Stubbs," Kansas Historical Society.

NOTES