About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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
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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most