employed at placing floor plates in the engine room of the war ship St.
Louis in the Puget Sound Navy Yard. Meantime, red and white lead paint
was being applied in the bilges of the vessel.
"As a result of this exposure to lead fumes, a sufficient amount of
lead was taken into claimant's system to produce 'toxic amblyopia,
both eyes,'"
which means
"disease of vision from imperfect sensation of the retina, without
organic lesion of the eye."
This disease incapacitated Hill on the thirteenth day after his first
exposure to the poison. The exposure lasted only seven days. Said the
solicitor:
"It is accordingly possible to refer the claimant's injury to an
event capable of being fixed in point of time. In the second place,
the injury to the claimant's eyes was neither reasonably to be
expected, nor the natural or inevitable consequence of the work he
personally was engaged upon. The injury must therefore be ascribed
to accident. The claimant's particular work had nothing to do with
the painting operations going on about him. His work as a ship
fitter related to the laying of places in the boiler room; the
painting was being done by others."
And this claim was approved.
But if, instead of Hill, one of the painters had been poisoned and
incapacitated by the fumes of lead paint, a similar claim would not have
been allowed by the solicitor. This is made perfectly clear by his
decision in the John Freiman case.
John was a laborer in the Boston Navy Yard, and it was his duty to scale
off lead-painted compartments on ships. He became incapacitated by "lead
poisoning contracted in the course of his employment," and his superior
officer certified that the injury was not due to negligence or
misconduct. After John had suffered several weeks as a result of
"painter's colic" and chronic lead poisoning, his claim was submitted.
It was necessary to decide whether the law applies to disease due to the
occupation. The solicitor declared:
"There is no such special provision made, and I can find nothing
which would, in my judgment, justify its application to a case of
lead poisoning or 'painter's colic.'"
The difficulties involved in legal technicalities become apparent. The
following story, verbatim from the government report (page 201), about
William Murray, who suffered with compressed air illness, strikingly
illustrates the point:
"The claimant in this case is a laborer employed by the Reclamation
Service, at Arizona shaft, Colorado River siphon. The claimant's
duties required him to work in compressed air. In consequence, he
was attacked with 'a severe case of bends,' which 'settled in
nearly all parts of the body.' When originally presented the claim
was disallowed on the ground that the bends is a disease, and
diseases contracted in the course of employment as distinguished
from injuries of an accidental nature are not within the operation
of the compensation act. A reconsideration of this action 'with a
view to the allowance of the claim, if the same is deemed to come
within the letter of the statute as it seems to come within its
spirit,' is now requested by the secretary of the interior, who
writes that a refusal to approve this claim may cause a number of
men to leave the work, as, on account of the bends, it is generally
regarded as very hazardous."
And the former decision was reversed!
The solicitor has passed upon other cases of occupational disease, with
some decidedly interesting results.
Mary A. Crellin was a folder of heavy paper at the Government Printing
Office. Continuous strain upon her fingers and wrist caused a
degeneration of the tendon sheath. A tumor or cystic growth developed.
Mary was obliged to have it surgically removed. Then she thought the
government, and not she, ought to stand the loss of wages due to her
incapacity. This attracted attention. Said the medical officer of the
Government Printing Office:
"This is the first case that I ever observed or noticed among
folders, until I examined a number of skilled female laborers
employed in this office upon the same vocation--that of folding
sheets of paper--of which five presented a similar condition, but
of such size as not to interfere with the manipulation of the
hand."
The solicitor decided that in this tendon degeneration there was "no
accidental element." It was "not due to injury." It was "due to
excessive use" in the service of Uncle Sam. Mary's claim was denied.
Another case--a plate printer, J. B. Irving, who was on the night force
in the Bureau of Engraving and Printing. In the course of a night he
printed 900 sheets, and as he handled each sheet he looked for a few
seconds at a bright engraved plate which reflected into his eyes. One
night last March the bureau tried out some new electric lights, and
their use was continued three successive nights. Irving thereupon
stopped work, and the doctor diagnosed his case as "Retinitis
conjunctivitis, both eyes." He was unable to keep his eyes open in a
bright light. After investigation, the solicitor decided that in this
case compensation should be granted on the ground that the injury was
not anticipated, nor was it the result of any slow accumulation of
trifling injuries.
Sunstroke, which is known as a disease, is compensated under the act.
The straining of the ligaments about the wrist, known as "synovitis of
the wrist" and scheduled as a disease under the British act, has been
compensated. "Vaccinia" from vaccination is compensated. A long-standing
case of flat-foot was compensated, even though the use of a simple wedge
made the injured one better than before.
John Sheeran, who contracted pneumonia due to exposure at the Soo Canal,
was denied compensation. But J. B. Atkinson, who fell from a ladder and
continued to work 181 days thereafter, until typhoid fever took him off
within a week, "died by reason of his injury," because the fall "lowered
his vitality, ... which rendered him peculiarly susceptible to typhoid
infection, ... which resulted in his death."
The question may fairly be raised as to whether it is not a bit unfair
to an administrative official to place him under the embarrassment of
interpreting a statute so as to cover, for example, some but not all
cases of industrial lead poisoning. Would it not be much better plainly
to include occupational diseases in the law?
After more than four years of experience under the present law the
government recently published the first official report upon its
operation. Sixty-six closely printed pages of this report are devoted to
embarrassing questions which have arisen because of claims arising out
of occupational diseases. The administration in its awards has been as
liberal as could be expected under the unfortunate legislative
restrictions. The solicitor for the department has taken a keen interest
in its operation. He has been faithful and alert. One of his most urgent
recommendations for a change in the law is that it be extended to
embrace occupational diseases.
The present federal law is known as the Workmen's Compensation Act of
May 30, 1908, and is America's pioneer compensation law. It was a step
forward, but only a step. Fortunately, state legislatures have not
copied its main provisions, for they are totally inadequate. This
federal law applies to only about one-third of our 350,000 civilian
employees. It grants no relief for incapacity lasting less than fifteen
days, it makes no provision for medical treatment, and one year's wages
is the maximum benefit even for total blindness or death. In fact, the
present law is so deficient that its original sponsors now waste no
words in its defense, but frankly apologize for its shortcomings. "Not a
revision," says one in a position to know, "but a new law is needed."
The draft of a new law, prepared after months of careful investigation
of experience of this and all other compensation acts, and drafted with
infinite care at the instigation of the Association for Labor
Legislation, has been introduced in Congress by Senator Kern. Surely the
United States should now provide for its own government employees
incapacitated by industrial accidents and occupational diseases a system
of safety and sanitation coupled with compensation at least equivalent
to that furnished by the most progressive nations of the world. The bill
now before Congress offers this immediate opportunity.
Nor can the state legislatures longer ignore the injustice of this
arbitrary distinction between accidents and diseases due to the peculiar
conditions of employment.
In a pamphlet on Industrial Diseases and Occupational Standards,
published in May, 1910, the writer urged immediate consideration of this
problem, and said:
"No intelligent person can go far in the study of compensation for
industrial accidents without realizing that a logical consideration
of the facts must lead likewise to compensation for industrial
diseases."
Since then three momentous years have passed. One state after another is
preparing to meet this problem, which becomes steadily more pressing.
One of the three great national political parties now pledges itself to
work unceasingly in state and nation for trade disease compensation.
Wisconsin has the promise of relief in the political platform of the
present administration; Ohio, by recent constitutional amendment, is
prepared for action; Pennsylvania is following this example; several
states, including Massachusetts and Michigan, by a liberal
interpretation of present laws, are coquetting with the issue; New
Hampshire has boldly introduced specific legislation on the subject.[7]
[7] In 1912 the Association for Labor Legislation prepared, in
co-operation with the United States Bureau of Labor and the Library of
Congress, a critical bibliography on industrial diseases. Fifty printed
pages of titles were thus made available on this important subject.
European countries have published volumes on compensation for industrial
diseases, but, as far as can be learned, this is the first American
article under this title.
Leading countries of Europe have already taken this step. Great Britain
in her Workmen's Compensation Act of 1906, in addition to accidents,
included in the first schedule six diseases of occupation. That schedule
has been extended until it now includes no less than twenty-four
distinct maladies due to peculiar conditions of employment. Germany, as
a result of the experience of a quarter of a century, in her new
imperial code expressly has declared for similar action. Switzerland, in
her system accepted by referendum vote in February, 1912, makes like
provision for insurance against occupational diseases. The government of
Holland, in November, 1912, laid before Parliament a bill to regulate
the insurance of workmen against industrial diseases in connection with
the proposed sickness insurance.
[Illustration: DOUBLE WRIST-DROP
Hands of workman paralyzed for sixteen years as result of lead
poisoning. Five of his fellow workmen were killed by lead poisoning
before they were forty. Victims of lead poisoning are not compensated
under American laws because technically an occupational disease is "not
an injury."]
The arguments used so effectively by advocates of compensation for
accidents, and now so generally accepted by all men, apply with even
greater force in the consideration of relief for the victims of
occupational diseases. No one will doubt, for example, that placing the
financial cost of lead poisoning upon the lead industry will promote
greater cleanliness in the lead trades. It will pay to clean up. A
considerable part of the money now paid to employers' liability
companies and to ambulance chasers could, under a just system of
compensation, go where it belongs--to the injured workman or his family.
Expensive, annoying, and unsatisfactory litigation could be reduced to a
minimum. Information concerning special danger points in industry would
be automatically pointed out to the factory inspectors in a manner both
prompt and sure. Unnecessary occupational diseases would then be
prevented, and that is the real problem.
The principle is admitted that workmen should be compensated for
injuries by accident arising out of their employment. It is only
consistent that incapacity caused by diseases due to the employment
should also be included. Some diseases are, in the ordinary use of the
term, accidental. But many people work where trade diseases of an
insidious nature are contracted and where there is constant risk of
illness on that account. These diseases are as serious as accidents.
There is no social justification for drawing an arbitrary line of
distinction--the principle of compensation is no longer in an
experimental stage. A compensation law should include, says Sir Thomas
Oliver, the leading English authority on the subject, "industrial
diseases, the consequences of which may be immediate or remote, and
which are often more severe than accidents."
It must be admitted that even our discredited system of employers'
liability has afforded occasional relief to the victims of accidents.
But even this uncertain and irregular protection, poor as it is, has in
most instances been denied to workers exposed to the creeping horror of
industrial disease. The exact occupational cause of the affliction is,
of course, more difficult to prove. The employee is thus placed at still
greater disadvantage in dealing with his employer. American judges,
basing their opinions on outgrown decisions of the British House of
Lords, have declared that "industrial injuries" include only those
afflictions of an accidental nature whose cause can be ascribed to a
definite point of time, and have thus almost universally barred even
from the occasional and expensive relief of employers' liability the
victims of such typical maladies as the match maker's "phossy jaw," the
lead worker's "wrist-drop" and painter's colic, the boiler maker's
deafness, the glass worker's cataract, the potter's palsy, the hatter's
shakes, and the compressed air worker's bends.
The public has not yet forgotten pitiful cases where match
manufacturers, through the work of their attorneys, were able to deny
all financial relief to their victims of "phossy jaw." And there are
cases now pending in the courts where men totally blinded by the fumes
of wood alcohol have year after year sued in vain for some financial
relief from brewery companies which employed them to varnish the inside
of beer vats.
Occasionally, however, large awards have been made. But they, as in the
case of damage suits arising out of accidents, encourage further
expensive litigation. One case of wood alcohol poisoning in Ohio (Joseph
Frank _vs._ The Herancourt Brewing Co., 82 O. S., 424) is now a matter
of record. The Supreme Court compelled the employer to pay $12,500, with
interest and costs, aggregating over $15,000.
"After five years of litigation, six hearings in three different
courts, including two trips to the Supreme Court, printing of
several thousand pages of record testimony and briefs, taking
voluminous depositions in different parts of the country involving
great expense, during which the injured workman--in this instance
rendered blind--was totally unable to support his wife and family,
the wife being obliged to work at nights in downtown cafes,
scrubbing floors after midnight, in order to provide scant food for
herself and babies while the latter slept."
This verdict is of peculiar interest, according to the well-known
Cincinnati law firm which prosecuted the case, because it is the first
instance so far as they have been able to ascertain in which there has
been a recovery from injuries resulting from the poisonous influence of
wood alcohol.
But do not be misled by this rare case. And do not hastily conclude that
the new state insurance law in Ohio has rendered justice in such cases
more certain, for the contrary is true. A victim of industrial lead
poisoning appealed to the state board under that law, and the attorney
general, on October 26, 1912, ruled that disability due to lead
poisoning was an occupational disease and "not an injury" under the act.
Similar decisions have been made by the Washington State Insurance
Department.
In fact, with the exception of occasional instances in two or three
states, where claims have been paid by employers without protest, the
victims of occupational diseases in America are still practically
without relief.
THE SOCIAL AIM IN GOVERNMENT
SAMUEL McCUNE LINDSAY
PROFESSOR OF SOCIAL LEGISLATION, COLUMBIA UNIVERSITY
"This not a day of triumph; it is a day of dedication. Here muster,
not the forces of party, but the forces of humanity. Men's hearts
wait upon us; men's lives hang in the balance; men's hopes call
upon us to say what we will do. Who shall live up to the great
trust? Who dares fail to try? I summon all honest men, all
patriotic, all forward-looking men to my side. God helping me, I
will not fail them, if they will but counsel and sustain me!"
--Thus spoke the President of the United States in his inaugural
address. Legislation in nation and state, giving expression to the will
of the people and often to their aspirations, is supposed, in theory at
least, to emanate from the representatives of the people. In European
governments there is usually a privileged initiative on the part of the
executive branch of the government or the administrative officers who
represent the electoral majority, that is, "the government of the day."
Thus the government bills in the British Parliament are the only ones
sure of full consideration. In American legislatures a somewhat similar
role is played by the President and the governors of the states in their
legislative programs as outlined in the messages they send in accordance
with constitutional prerogative or command. As party leaders they voice
the dominant wishes of the voters and interpret public opinion; as chief
executives they exercise great power over the legislatures in compelling
compliance with the people's mandates.
A comparison and study of the subject-matter of President Wilson's
inaugural and the inaugurals or messages of thirty-five governors
opening legislative sessions since January 1 of this year, shows the
great influence of the progressive forces of the nation which were
victorious in all parties and in all of the states at the polls in
November. A more confident note, new in most cases, is struck in all
these pronouncements. It is the social spirit and the social conscience
in every community that seeks and demands a new adjustment of law and
government to human needs, and for the people, a new freedom.
President Wilson voices this new feeling best.
"Nor have we studied and perfected the means by which government
may be put at the service of humanity, in safeguarding the health
of the nation, the health of its men and its women and its
children, as well as their rights in the struggle for existence.
This no sentimental duty. The firm basis of government is justice,
not pity. These are matters of justice. There can be no equality of
opportunity, the first essential of justice in the body politic, if
men and women and children be not shielded in their lives, their
very vitality, from the consequences of great industrial and social
processes which they cannot alter, control, or singly cope with.
Society must see to it that it does not itself crush or weaken or
damage its own constituent parts. The first duty of law is to keep
sound the society it serves. Sanitary laws, pure food laws, and
laws determining conditions of labor which individuals are
powerless to determine for themselves are intimate parts of the
very business of justice and legal efficiency.
"These are some of the things we ought to do, and not leave the
others undone, the old-fashioned, never-to-be-neglected,
fundamental safeguarding of property and of individual right. This
is the high enterprise of the new day; to lift everything that
concerns our life as a nation to the light that shines from the
hearth-fire of every man's conscience and vision of the right. It
is inconceivable that we should do this as partisans; it is
inconceivable that we should do it in ignorance of the facts as
they are or in blind haste. We shall restore, not destroy. We shall
deal with our economic system as it is and as it may be modified,
not as it might be if we had a clean sheet of paper to write upon;
and step by step we shall make it what it should be, in the spirit
of those who question their own wisdom and seek counsel and
knowledge, not shallow self-satisfaction or the excitement of
excursions whither they cannot tell. Justice, and only justice,
shall always be our motto.
"And yet it will be no cool process of mere science. The nation has
been deeply stirred, stirred by a solemn passion, stirred by the
knowledge of wrong, of ideals lost, of government too often
debauched and made an instrument of evil. The feelings with which
we face this new age of right and opportunity sweep across our
heartstrings like some air out of God's own presence, where justice
and mercy are reconciled and the judge and the brother are one. We
know our task to be no mere task of politics, but a task which
shall search us through and through, whether we be able to
understand our time and the need of our people, whether we be
indeed their spokesmen and interpreters, whether we have the pure
heart to comprehend and the rectified will to choose our high
course of action."
Governor Cox of Ohio, speaking for a state that had just made many
fundamental changes in its organic law by adopting the recommendations,
almost in their entirety, of a constitutional convention, says:
"Progressive government, so called, which means in its correct
understanding, constructive work, along the lines pointed out by
the lamps of experience and the higher moral vision of advanced
civilization, is now on trial in our state. Every constitutional
facility has been provided for an upward step and Ohio, because of
the useful part it has played in the affairs of the country, is at
this hour in the eye of the nation.
"The state has the resources, human and material, to make a
thorough test of the principle of an enlarged social justice,
through government, and the results of our labors will extend
beyond state borders. A thorough appreciation, therefore, of the
stupendous responsibility before you, and full recognition of the
probable insidious resistance to be encountered, will add
immeasurably to your equipment to meet the emergency. If I sense
with any degree of accuracy the state of public mind, I am correct
in the belief that a vast preponderance of the people of all
classes have faith both in the wisdom and the certain results of a
constructive progressive program of government. Let us in full
understanding of the consequences of our acts maintain this measure
of public confidence and encourage the faith of those who are
honestly skeptical because of the apprehension generated in their
minds by a third class, which may be unconsciously prompted by
sordid impulses developed by unbroken preferences of government.
"No fair-minded person will dispute the logic nor question the
equity of any plan which contemplates legislative action entirely
within the limitations of suffrage endorsement. If the legislature,
in the passage of a single law, runs counter to public desire or
interest, the people through the referendum have the means to undo
it. No greater safeguard can be devised by the genius of man, and
to question either the moral or practical phase of this
arrangement, is to admit unsoundness in the theory of a republic.
In other days changes in government such as are made necessary
everywhere by our industrial and social conditions, would have been
wrought by riot and revolution. Now they are accomplished through
peaceful evolution. He must be indeed a man of unfortunate
temperamental qualities who does not find in this a circumstance
that thrills every patriotic fiber in his being."