Between a rock and a hard place

By Judge Brian Addington, Gray, and Jane Salem, staff attorney, Nashville

Brian Addington

As we just celebrated Labor Day, and as we approach the 100-year anniversary of workers’ compensation in Tennessee, both are excellent reminders of the importance of the Workers’ Compensation Law.

As you know, workers’ compensation was conceived as the “grand bargain,” in that employees gave up the right to sue in tort in exchange for the exclusive remedy of no-fault work-injury insurance with limited benefits.

Before the Workers’ Compensation Law, it appears that for most employees, it would have been hard, if not impossible, to prove the employer’s negligence, especially if the job included obvious dangers.

Consider Brewer v. Tennessee Coal Company. Mr. Brewer’s job required him to climb down from a trestle on a worn walkway made from a piece of timber. Originally 18 inches wide, the board was worn to just two or three inches. Employees warned the employer about the issue, and it agreed to fix the board. But before the board was fixed, Mr. Brewer slipped and fell off it onto iron ore 25 feet below, breaking his arm and kneecap.

Mr. Brewer sued his employer in tort because it was the only way to recover in those days.  Ultimately, the Tennessee Supreme Court held that he assumed the risk because he was aware of the dangers with the faulty board. The high court went on to say that even if the employee complained about the obvious dangerous condition beforehand, and the employer promised to fix it, the employee couldn’t prove the employer’s negligence if the employee went ahead with his work.

Later, this recurred in Baird-Ward Printing Co. v. Fleming. Mr. Fleming worked on the third floor of a Nashville publishing house. His supervisor told him to clean the windows. There was absolutely no safety equipment for him to use, although there was safety equipment in two other office buildings in Nashville. Mr. Fleming fell to his death while cleaning the outside of a window. Although the trial court ruled in his estate’s favor, the Supreme Court reversed, saying he assumed the risk when he knew it was a dangerous job and there was no proof of a causal connection between the alleged negligence and the injury.

You can easily see the problems for an employee in these cases. Should an employee fail to do what the employer asked and be fired, or go ahead and try to perform something dangerous hoping everything would be okay? Talk about a rock and a hard place. You could imagine an employee with bills to pay willing to assume the risk, knowing that if something happened, it would be almost impossible for the worker or the worker’s family to receive compensation.

Fast-forward almost 100 years. Unfortunately, dangerous work situations still exist, although we at the Bureau like to think that going to work is not nearly as frightening as it was for some workers back then. The law has lessened the burden on injured workers to obtain compensation and benefited business with fewer lawsuits.

By the way, keep an eye out in the months ahead for information about some of the ways the Bureau will commemorate 100 years of workers’ compensation in Tennessee.

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