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10 Workmen's Comp. L. Rev. 1 (1987)
Retaliatory Discharge for Filing a Workers' Compensation Claim: The Development of a Modern Tort Action

handle is hein.journals/wrkco10 and id is 19 raw text is: I. NEW DEVELOPMENTS Retaliatory Discharge for Filing a Workers' Compensation Claim: The Development of a Modern Tort Action By JEAN C. LOVE* In the early 1900's, state legislatures enacted workers' compensation statutes to afford employees a more effective remedy for work-related, accidental injuries than was available under tort law.I Tort law provided complete compensation, but required proof of negligence. Furthermore, the defenses of assumption of risk, contributory negligence, and fellow- servant negligence often barred recovery.2 Workers' compensation, in contrast, provides remuneration for economic losses caused by work-re- lated injuries without proof of fault. The legislation often is described as a bargain, trade-off, or compromise between employees and em- ployers.3 Employees have relinquished complete compensation for eco- nomic and noneconomic harm in exchange for no-fault benefits that provide swift and certain reimbursement of most economic losses.4 On the other hand, employers have sacrificed their tort law defenses in ex- change for limited statutory liability that exempts them from jury ver- dicts.5 The basic policy underlying workers' compensation legislation contemplates shifting the economic burden for work-related injuries from the employee to the employer.6 * Professor of Law, University of California, Davis. B.A., 1965, J.D., 1968, University of Wisconsin. I am grateful to my close friend, Patricia Cain, Professor or Law at the Univer- sity of Texas, for her invaluable comments on the first draft of this Article. I am also indebted to my research assistant Lisa Tillman, as well as to Elizabeth Ikemire, Harriet Cummings, Debra Roberts, and Nancy de la Pena, who updated Lisa's research after she graduated. 1. 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 5.30 (1985); Epstein, The Historical Origins and Economic Structure of Workers' Compensation Low, 16 GA. L REv. 775, 775-76 (1982); Larson, The Nature and Origins of Workmen's Compensation, 37 CORNELL L.Q. 206, 209 (1952) [hereinafter cited as Larson, Nature and Origins). 2. Larson, Nature and Origins, supra note 1, at 212. 3. Id. at 206; accord Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 179-80, 384 N.E.2d 353, 356 (1978); Leach v. Lauhoff Grain Co., 51 IIl. App. 3d 1022, 1023, 366 N.E.2d 1145, 1146 (1977). 4. Larson, Nature and Origins, supra note 1, at 206. 5. Kelsay v. Motorola, Inc., 74 Il1. 2d 172, 180, 384 N.E.2d 353, 356 (1978). 6. Frampton v. Central Ind. Gas Co., 260 Ind. 249, 251, 297 N.E.2d 425, 427 (1973). Copyright@ Hasting College of the Law, reprinted by permission from 1986 Hastings College Law Journal: 551-590 (1986).

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