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Appendix
D
INJURY COMPENSATION SYSTEMS IN THE UNITED STATE S
This appendix briefly describes existing injury compensation
systems in the United States. Vaccine-related programs include the
federal government's handling of the swine influenza situation and
California's Department of Health Services Immunization Reaction
Program. Workers' compensation, the Federal Black Lung Act, and
social security disability compensation are examples of injury-
compensation programs not related to vaccines.
VACCINE INJURY
Federal Legislation
P.L. 94-380, effective on August 11, 1976, provides for an
exclusive remedy against the United States n for personal injury or
death arising out of the administration of swine influenza vaccine
under the swine influenza program and based upon the act or omission
of a program participant."
The statute, its operation, and statistics regarding claims and
settlements are discussed in Chapter 6.
State Legislation
State of California, Department of Health Services Immunization
Reaction Program The Immunization Reaction Program provides n for
care, including medical, institutional, supportive, and rehabilitative
care, necessitated because of severe adverse reactions to any
immunization required by state law to be administered to children
under 18 years of age. n
Compensation for injuries resulting from the administration of
state-mandated vaccines (DTP, polio, measles, mumps, and rubella) is
provided through the Immunization Adverse Reaction Fund, which lies
within the state treasury and is administered by the state department
of health.
Any severe adverse reaction recognized by a physician as being
causally related to a vaccine and requiring hospitalization in an
171
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17Z
acute care hospital for three or more consecutive days is covered. A
severe adverse reaction is described as "one which manifests itself
not more than 30 days after immunization and requires extensive
medical care, as defined by regulation of the department.''
Benefits are terminated when no further active, medical,
institutional, or rehabilitative care is required, and compensation
shall not exceed $25,000.
The state may claim reimbursement from third parties for an amount
equal to that reimbursed by the state. The program is directly
administered by the California Childr ens Service.
Under the statute, no person involved in the production or
administration of a vaccine to a minor may be held liable for injury,
provided the vaccine is state mandated and no willful misconduct or
gross negligence is involved.
COMPENSATION FOR OTHER INJURIE S
Workers' Compensation
An analysis of workers' compensation laws in the 50 U.S. states
(and in Canadian provinces) has been published by the U.S. Chamber of
Commerce.3 Workers employed by the federal government, longshoremen
and harbor workers, and those employed by the District of Columbia are
covered by separate legislation. The aims of this body of legislation
have been summarized by the Chamber of Commerce:
In essence, workers' compensation laws hold that industrial
employers should assume costs of occupational disabilities
without regard to any fault involved. Resulting economic
losses are considered costs of production--chargeable, to the
extent possible, as a price factor. The laws serve to relieve
employers of liability from common-law suits involving
negligence.3
Six basic objectives underlie workers' compensation laws. They:
1. Provide sure, prompt, and reasonable income and medical
benefits to work accident victims, or income benefits to their
dependents, regardless of fault;
2. Provide a single remedy and reduce court delays, costs,
and work loads arising out of personal injury litigation;
3. Relieve public and private charities of financial
drains--incident to uncompensated industrial accidents;
4. Eliminate payment of fees to lawyers and witnesses as
well as time-consuming trials and appeals;
5. Encourage maximum employer interest in safety and
rehabilitation through an appropriate experience-rating
mechanism; and
6. Promote frank study of causes of accidents (rather than
concealment of fault)--reducing preventable accidents and human
suffering.3
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Most jurisdictions require employers to obtain insurance or
prove financial ability to self-insure, i.e., to carry their own
financial risk. Operation of the workers' compensation system was
evaluated in 1972 by the National Commission of State workmens
Compensation Laws and in 1976 by the Inter-Agency Workers
Compensation Task Force. Both groups reaffirmed the fundamental
objectives of the system but recommended various operational
changes to ensure that the laws lived up to their potential. Both
Commission and Task Force rejected replacement of state programs
with one federal program. Legislation introduced into the U.S.
Congress to achieve "minimum standards" has never received
sufficient support to move beyond the committee level.
Extensive information on the coverage of the laws, benefits
provided, administration of the laws, and setting of premium rates
are presented in the Chamber of Commerce analysis and in a brief
summary prepared by the American Federation of Labor and Congress
of Industrial Organizations (AFL-CIO).3'4
The Department of Health and Human Services estimated that
employers spent slightly more than $22.9 billion in 1981 to insure
or self-insure their work-injury risks, or just under $2 per $100
of payroll.3
Questions have been raised regarding the appropriateness of
existing legislation--predominantly designed to deal with
traumatic injury--for dealing with disease, especially chronic or
delayed disease.5~6 In relation to the operation of the laws, a
senior official in the AFL-CIO stated:
The AFL-CIO has long supported the traditional workers'
compensation concept of exclusivity vis-a-vis the workers'
employer. The certainty of the compensation payment, weighed
against the uncertainty of traditional common law actions and
defenses, has been the cornerstone of workers' compensation
systems for more than 70 years.
There are good reasons for this approach. Experience has
shown that where workers have to seek redress against their
employers in the courts, the time consumed has been extensive,
the outcome uncertain and the awards, when they come, often net
the worker very little after lawyer fees and costs. The
employer also benefits by knowing the extent of his or her
liabilities through the no-fault system.
The AFL-CIO would urge one exception to this approach.
Companies should not have the shelter and protection of
exclusive remedy when occupational illnesses related to toxic
substances are the result of willful or intentional
misconduct. An employer who knowingly and/or willfully exposes
workers to dangerous substances or dangerous conditions should
forfeit any entitlement to an exemption from common law tort
suits. The severity of the occupational disease problem in the
United States requires that every means of encouraging
preventive action be employed--including the deterrent effect
of possible legal action.7
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174
This testimony also supported replacement of the state workers'
compensation laws with federal legislation. The AFL-CIO official said
that few workers severely disabled by occupational disease receive
benefits from the state systems, and when they do, it is usually only
by litigation.7
Black Lung Compensation
As described in the U.S. Chamber of Commerce document:3
The Federal Black Lung Act (Title IV of the federal Coal
Mine Health and Safety Act of 1969, as amended in 1972, 1978,
and 1981) provides benefits for total disability or death
caused by respiratory illness attributable to coal mining
(black lung disease). The Act is administered by the Division
of Coal Mine Workers in the U.S. Department of Labor's Office
of Workmen's Compensation Programs and by the Social Security
Administration.
Effective January 1, 1984, monthly benefits range from
$315.60 to 3631.10, computed at 137-1/2 percent of the minimum
monthly pay for federal employees, plus an allowance for
dependents equal to 50 percent, 75 percent, or 100 percent of
the basic benefit, for 1, 2, or 3 or more dependents,
respectively. Beneficiaries also receive an annual
cost-of-living increase. \
A total of $10 billion in black lung payments have been
made to 500,000 claimants from 1969 through 1980.
A Black Lung Disability Trust Fund, financed by an excise
tax on coal production, was set up by the 1978 amendments to
pay claims where the last employment was prior to 1970 or where
no responsible coal mine operator has been identified. The
fund was in deficit by $22.2 billion as of January 31, 1984,
despite 1981 amendments that doubled the coal tax and revised
eligibility criteria in an effort to make the fund solvent.
Social Security Disability Compensation
As described in the U.S. Chamber of Commerce document: 3
The federal Social Security Disability program pays
benefits on behalf of disabled workers under age 65 whose
disability is expected to last 12 months or result in death.
A worker becomes eligible after a minimum period of employment
covered by Social Security, measured in calendar quarters.
There is a 5-month waiting period.
Cash benefits are payable monthly based on wages in covered
employment, plus allowances for spouse and children. Effective
January 1, 1984, the maximum is $854 for an individual, family
maximum $1,281. Cost-of-living increases are payable effective
each June.
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175
Benefits are paid out of the Disability Trust Fund,
financed from the federal Social Security tax.
Combined Social Security Disability and workers'
compensation benefits may not exceed 80 percent of "average
current earnings" prior to disability. The Omnibus Budget
Reconciliation Act of 1981 requires that Social Security
disability benefits supplement workers' compensation unless
state law provided for a reverse offset on or before
February 18, 1981.
REFERENCES
1. United States Congress. 1976. P.L. 94-380, National Swine Flu
Immunization Program of 1976. Effective August 12, 1976.
2. State of California. 1977. California: Health and Safety Code,
Division 1, Part 1, Chapter 2, Ar ticle 14.5 (Health and Safety
Code Section 429.35-429.36~.
Chamber of Commerce of the United States. 1984. Analysis of
Workers Compensation Laws: 1984. Washington, D.C.: Chamber of
Co~runerce of the United States.
4. American Federation of Labor and Congress of Industria 1
Organizations. 1984. Workers Compensation and Unemployment
Insurance Under State Laws, January 1, 1984. Washington, D.C.:
AFL-CIO.
5. Samuel, H. 1984. Testimony before the Subcommittee on Labor,
Committee on Labor and Human Resources, U.S. Senate, May 21, 1984,
Washington, D.C..
6. Samuel, H. 1984. The Broken Promise--Certainty, Speed, and
Adequacy. Presented at the International Conference on Disability
Compensation and Occupational Disease, June 7, 1984, New York, New
York.
7. Young, K. 1984. Testimony before the Subco~ranittee on Labor,
Committee on Labor and Human Resources, U.S. Senate, May 21, 1984,
Washington, D.C.
Representative terms from entire chapter:
security disability
