Medicine in the industrial battle: Early workers' compensation

Sot. Sci. Med. Vol. 28, No. 11, pp. I 113-l 120, 1989 Printed in Great Bntain. All rights reserved

0277-9536189 53.00 + 0.00 Copyright 0 1989 Pcrgamon Press plc

MEDICINE IN THE INDUSTRIAL BATTLE: EARLY WORKERS’ COMPENSATION

ANTHONYBALE

Yale Center for Mental Health Services Research, 350 Congress Avenue, New Haven, CT 06519, U.S.A.

Abstract-This article examines the changing role of medicine in the early workers’ compensation system by using an approach derived in part from Marx’s work. It looks at the increasing importance of medicine in mediating class conflict over transforming work-related injuries into money, meaning, and medical care under the new system. The concept of ‘medico-legalization’ is developed to help explain some of these changes.

Key words-workers’ compensation, medical care, medico-legal, Marxism, class conflict, industrial accidents

INTRODUCTION

“Some crippling of body and mind,” Marx wrote in the first volume of Capital, “is inseparable even from division of labour in society as a whole. Since, however, manufacture carries this social separation of branches of labour much further, and also, by its peculiar division, attacks the individual at the very roots of his life, it is the first to afford the materials for, and to give a start to, industrial pathology” [l]. He then footnotes Ramazzini’s pioneering 1713 work De Morbis Artljicum and other sources of what would now be called ‘occupational medicine’ rather than industrial pathology. As modern manufacture attacked workers’ lives at the roots, it also generated a scientific inquiry into their suffering and lost vitality, one that Marx relied on heavily when he tried to show the impact of capital on the bodies and minds of workers and their families. Although not explicitly characterized in Capital, Marx continually referred to a conversation linking medicine, working conditions, bodily and mental states, money, class interests and practices, and the state that forms the heart of occupational safety and health discourse.

Investigations into workplace health and safety conditions and the way industry dealt with this problem opened a window into understanding the capitalist system: “What could possibly show better the character of the capitalist mode of production, than the necessity that exists for forcing upon it, by Acts of Parliament, the simplest appliances for maintaining cleanliness and health” [l, p. 481]? The violence involved in mutilating and fatal accidents allowed a particularly graphic reading of the social relationships underlying these bodily assaults. While accidents in the Irish flax mills in the 1850s were “wholly unexampled in the history of machinery,” most “might have been prevented by the simplest appliances, at the cost of a few shillings” [l, p. 4811. The reports of the factory inspectors and various commissions showing employers’ unwillingness to provide the 500 ft3 of breathing space for venti- lation universally agreed necessary by English doctors for continuous work declared, for Marx,

“that consumption and other lung diseases among the workpeople are necessary conditions to the exis- tence of capital” [ 1, p. 4821. The considerably higher death rates of London printers and tailors compared with British agricultural workers helped support the contention Marx quoted approvingly from a Dr Simon, editor of the 1863-1864 Public Health Reports for London, that “the life of myriads of workmen and workwomen is now uselessly tortured and shortened by the neverending physical suffering that their mere occupation begets” [l, p. 4651.

Capital’s imposition of an extended working day, in its ‘were-wolf hunger’ for surplus labor, produced the deterioration of human labor power and the ‘permanent exhaustion and death of this labor- power itself” [ 1, p. 2651. Workers’ projection of their bodies onto the made world in capitalist production relations involved the transformation of their bodies through the disease process, leading to what Starry refers to as a ‘magnified body’, occasionally in the form of nameable work-related diseases, with “the body enlarging its claims, engulfing all other aspects of consciousness and finally eliminating them” [2].

Labor’s struggle for a shorter working day and improved conditions, embodied in the factory acts, could force changes in production processes, such as the introduction of a dipping mode for application of phosphorus to matches, that would produce healthier working conditions. Although victims of industrial accidents and illnesses, “the killed and wounded in the industrial battle,” appeared “with the regularity of the seasons,” “the protection afforded by the Factory Acts against dangerous machinery has had a beneficial effect”; however, enforcement was weak and new hazards were constantly being created [I, p. 4261. By imposing new outlays of capital, measures to ameliorate the conditions of workers hastened the concentration of capital.

Marx added compensation into this complex. In describing an 1856 factory law which weakened the earlier acts by making them enforceable only by workers’ suits for compensation, Marx commented that this was “sheer mockery in the view of the excessive cost of English lawsuits” and requirements

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for expert testimony, favoring the manufacturers [3]. After the 1856 law, accidents rose; however, the rate did not return to earlier levels. Marx attributed this to two causes: first, under the earlier regulations industry had adopted safety devices that often involved no extra expense; secondly, “a few labourers succeeded in securing heavy damages for their lost arms, and had this judgment upheld by the highest courts”. Litigation could alter some of the terms within which work robbed workers of their health.

Inquiries, for Marx, including those framed in medical terms, into the destructive impact of working conditions on workers’ bodies could be read to help reveal the inner workings of capital. Medical inquiries into working conditions were a way reform elements helped moderate the system’s homicidal characteris- tics; reforms impacted on the way surplus labor was extracted, such as by reducing child labor and short- ening the working day. The bodily injuries and illnesses created in the process of producing capitalist commodities became an object of class struggle within which medical inquiries by the state, often with contributions from labor and employer medical advocates, played an important role. Class struggle around modification of the relations of capital and labor in the social relations of production became conducted, in part, through a medical discourse anchored in state-sponsored inquiries into the conditions of exploitation and suffering.

This dynamic process of medical inquiries anchored in the state helping to fuel and mediate class conflict has not been part of the Marxist study of the political impact of American medicine. Rather than studying what medicine is, the functions it per- forms, its ideology, or its articulation with capitalist social relations, this line of investigation focuses on the way medicine becomes a constituent of discrete forms and episodes of class struggle, is shaped by these struggles, and the social transformations involved in creating new state and private structures to mediate these struggles. It looks concretely at what medicine has done and becomes in the course of class struggle.

A promising area to conduct this investigation in is one Marx began in CapitaI: state-constructed inquiries into the impact of working conditions on workers’ bodies [4]. This article examines one such aspect: medicine’s new role in the workers’ compensation system created in the United States in the 1910s after a period of class struggle over the value and meaning of workers’ injuries. It looks at the way new forms of transforming work injuries into money- new forms of mediating the class conflict produced in the ‘industrial battle’ involved in the killing and crippling of workers--called forth new forms of medicine, including the first American system of widespread state-mandated medical care benefits. The concept of medico-legalization is developed to characterize elements of the state-structured medical mediation of class conflict introduced by the workers’ compensation system.

WORKERS’ COMPENSATION

Beginning in 1911, state legislatures began to pass workers’ compensation laws that would receive court

approval. By 1920,40 states had enacted such a law. The new laws replaced the inquiries into employer negligence, employee contributory negligence, and employee assumption of risk conducted before juries under the employers’ liability tort system. Passage of these laws came after a class struggle in the courts and legislatures conducted with varying degrees of inten- sity in the different states involving two principal aspects: raising the value of work accidents through victories before juries and through weakening employers’ powerful legal defenses by enactments of state legislatures; and, a fault inquiry conducted through trials and in the broader public discourse that helped weaken business’s legitimacy and inflame class antagonism [5]. Workers and juries were raising the cost of injuries to capital, while workers and reformers were conducting a critical inquiry into the moral basis of the newly ascendant monopoly corpo- rations by examining the negligence producing industrial carnage.

Two secondary aspects helped fuel the compensation crisis that led to passage of the laws: the widespread nature of the accident problem-industrial and otherwise-and the occurrence of this crisis within the confines of a widespread class conflict in the early twentieth century between capital and labor. Passage of the laws in the different states involved particular coalitions of labor, reformers, and big business developing different forms of a new state structure to mediate the continual class conflict generated in the process of turning work-related injuries, produced in large part through homicidal capitalist production relations, into money and medical care: workers’ compensation [6].

Workers injured on the job under the employers’ liability system might receive income support and medical care from any of a number of sources: union benefit plans, fraternal plans, private accident and disability policies, employer benefit plans, money and services offered by the employer as part of a settlement offer that included a waiver of liability, and charity. Workers provided for themselves, either individually or collectively, or employers provided benefits in a paternalistic way. Workers received medical care and income support in private dealings with employers conducted in the shadow of the possibility of large jury verdicts, but the state did not mandate particular values for particular injuries or the type of care to be provided. The process of transforming work injuries into money went on largely without direct state mediation, except for occasional jury trials.

Workers’ compensation laws created a new framework within which inquiries into the value of work accidents and bargaining between employers, insurers, and workers would be conducted. An administrative agency of the state, rather than the courts, would typically be responsible for bringing these parties into a set of working relationships to process claims within the legal framework established by the state legislature. At the core of the new scheme was a severe constriction of workers’ possibilities for suing employers for large damages, along with employers assuming a very limited financial liability for most accidental injuries, without regard to fault. Negligent workers would no longer be barred from

Medicine in the industrial battle 1115

recovery or have the value of their claims severely reduced; negligent employers would have their liability limited. Workers were to be partially compen- sated regardless of their fault for their lost earning power-for the lost value of their labor power in the labor market-within a new state-created framework mandating employers to provide specified amounts of money and forms of medical care for conditions deemed compensable by the state compensation agency. The early workers’ compensation system by no means completely replaced the employers’ liability system; instead, large elements of the old system remained available for certain uncovered classes of injuries and groups of workers. Workers, employers, and insurers would still battle in compensation hearings and state legislatures over the value of workplace injuries; however, the fault debate was largely suppressed in this new process, while large, uncertain verdicts for full compensatory damages and pain and suffering were eliminated.

LITIGATION

Workers’ compensation advocates held that eliminating disputes over fault would end most of the costly, time-consuming, and bitter litigation around work accidents. A simple determination of work- relatedness and the extent of injury would result in a system without antagonism, providing benefits swiftly without paying out large sums to lawyers, who would be largely frozen out of it. The law would specify what employers were required to pay for the range of possible conditions. Compensation would simply be a matter of determining which conditions applied, followed by automatic payment.

Although most fault-based discourse was pushed to the fringes of the inquiry into work injuries, an elaborate system of disputes and litigation quickly arose under workers’ compensation. The terrain of litigation and conflict shifted to a new discourse within a new state structure. Workers and insurance companies again met in the new system as the central bargaining parties: workers filed claims against employers, but except where the employer was self- insured, the insurer paid out the money and handled the claims, providing a legal defense if necessary. Insurers were the full-time players in the claims processing game; they had high legal competence and an interest in holding down their payments to injured workers. Leaving the two parties to simply work out an agreement within the guidelines of the workers’ compensation statute without state inter- vention would only benefit the stronger party, the insurance company. As Walter Dodd observed in 1934, “the pecuniary interest of the insurance carrier may defeat or unduly reduce proper claims” [7]. The effective supervision needed to ensure that workers received the proper amount of compensation was often absent.

Given the economic incentives, structured inequal- ity in the power of the players, complex legislation, and weak administrative agencies, the unforeseen development of a highly adversarial system was almost inevitable [8]. In the early 193Os, 4% of all workers’ compensation claims in New Jersey were contraverted; 5% were contraverted in Illinois, 6% in

Massachusetts, and 14% in Wisconsin [7, p. 2201. Disputes over fault were rare; however, disputes became commonplace over the circumstances of the accident and whether the injury was related to work, over whether the employee was able to return to work and the extent of disability.

THE PHYSICIAN’S GAZE

A study of workers’ compensation in Pennsylvania in the early 1930s revealed the adversarial nature of that system [9]. Fifteen percent of the cases were contested; in one-third of the hearings the employer or insurer was represented by counsel while the worker was not. Medically-related issues were the biggest source of contest: in 53% of the contested cases the issues were exclusively medical, and another 11% combined medical and non-medical issues. Fatal cases rarely involved medical issues; however, medical testimony was involved in 80% of all contested cases for termination or modification of benefits. Most conflicts occurred over the length and degree of disability, rather than over the cause of the injury itself. The medical testimony came from physicians who presented conflicting appraisals depending on who paid for the testimony. Claimants and insurers each developed their own networks of lawyers and expert witnesses. Workers’ patterns of payment in Pennsylvania may have ensured them second-rate medical representation: “The doctor who testifies for the worker has little success in collecting his fee; in about three out of every ten cases the fee was paid. Fees averaged $18.75” [9, p. 121.

In 1934 the Governor’s Committee on Workmen’s Compensation in Ohio reported “it appears that in at least 80% of the injured cases, compensation or non-compensation depends upon medical judgment” [7, p. 2241. A national study in the early 1970s found that 59.6% of the cases contested by carriers were for the medically-related issues of degree of impairment (54.5%), doubted diagnosis (1.6%), and length of disability (3.5%) [lo]. In these medical disputes the worker’s body became subjected to the partisan gazes of opposing physicians. These medical experts sought to create for the attorneys who hired them plausible and persuasive medical reports and/or testimony aimed at persuading the compensation officials deciding the cases why the awards should be made or not, why the amount of compensation should be maximized or minimized. This performance was acted out before experienced hearing officers who, unlike inexperienced jurors, could com- pare this performance and set of facts with others they had encountered, often presented by the same doctor-lawyer teams.

A 1932 committee investigating alleged medical care abuses in New York’s workers’ compensation system showed that in serious cases “the physicians employed by injured workers testified uniformly that the workers were disabled as a result of the injury and said everything conducive to the granting of maximum awards, while physicians employed by the companies with almost equal unanimity in the same cases testified that the workers were entitled to no or little compensation” [ 111. The committee concluded “that much of the medical testimony given before the

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industrial board is determined by the financial interests of the party who employs the physician”.

Much of the litigation in the employers’ liability system revolved around the cause of the accident. Under workers’ compensation, attention shifted to the consequences of the injury: Was the disability temporary or permanent? Was the person unfit for work? What was the percentage of permanent disability? Was the person malingering? Benefits were statutorily set at a percentage of wages, usually subject to a maximum, based upon the extent and duration of disability. The system operated under no pretense, as did the tort system, of compensating anywhere near the monetary equivalent of the entire loss; in fact, there was much concern with having the worker bear a substantial loss as both a safety incentive and guard against malingering. Most injuries were considered partial disabilities unless involving multiple losses of anatomical parts. The 1919 New Jersey statute, for example, allowed total disability compensation only for “loss of both hands, or both arms, or both legs, or both eyes, or any two of these members as a result of one accident”.

States developed schedules establishing fixed compensation amounts for loss of bodily parts; amounts were hypothetically based upon the average loss of earning power occasioned, for example, by the amputation of an arm, and became divorced from adjust- ing to the widely varying economic consequences of such injuries to workers with different locations in the labor market. Schedules simplified the disability evaluation process by limiting the range of disputes to where the injury fell on it. Each finger and each joint might have a separate value; there might be a dispute over which joint an amputation was nearer to, but once that was decided the compensation could be determined by applying the schedule. Developed from categories and relative values originated by commercial insurers and European insurance programs, schedules presumed to turn the loss of a bodily part into a surrogate for lost earning capacity. Schedules used a form of pseudo-rationality involving measurements of bodily functions and calcula- tions to turn injuries into percentage ratings, related to each other in a scale of relative severity, and finally into money. As Stone observes:

. the schedules all assume that a person (or more properly a person’s ability to function) is a collection of arith- metically manipulable separate entities. Human performance is divided into percentiles, so that disability is conceived in terms of missing parts. Impairments become entities to be subtracted from the presumed wholeness of the individual [ 121.

The inquiry into lost earning power on the labor market was quickly transformed by the administrative agency into a balancing act to come to some middle ground between conflicting medical testimony attributing widely differing disability ratings to claimants. Claims were processed and disputes adjudicated through the process of administratively reconciling conflicting appraisals framed in the new discipline of disability evaluation. Physicians not only had to diagnose and treat injuries and illnesses, they had to assess disability-give the condition a percentage rating and say whether it was temporary

or permanent-within a framework set by each agency in a way that would please their respective clients.

Styles of disability evaluation differed among the states. In some states physicians simply supplied estimates of anatomical impairment; others required estimates of anatomical impairment and functional disability for work; while others were primarily interested in estimates of functional disability. At a 1935 conference, four medical disability rating experts from different states examined several North Carolina compensation cases and estimated their extent of permanent partial disability [13]. Perhaps not surprisingly, estimates on one case ranged from nothing (hysteria) to 80%, while another case saw estimates ranging from 25 to 90%.

Under workers’ compensation, physicians began to serve as ‘gatekeepers’ for rationing benefits [12]. This role became most pronounced in disease litigation, where issues of causation determining eligi- bility for compensation came sharply into play. An elaborate medico-legal discourse was established within each state workers’ compensation system, regulating how the extent of injuries would be determined in the process of transforming these administratively defined issues into money, often through the schedule. In the change from employers’ liability to workers’ compensation a new administrative medico- legal discourse replaced the earlier inquiry, filtered through a jury’s shared humanity, into fault, financial loss, and pain and suffering. In its place was a medically-mediated inquiry into the person’s lost earnings and earning capacity based on what the person had been making and the nature of the injury as comprehended in a complex medico-legal administrative context. Two new forms of knowledge, disability evaluation and vocational rehabilitation, evolved as elements of the workers’ compensation system. Disability evaluation was needed to measure the percentage of lost bodily functioning; vocational rehabilitation evolved to assess the value of the diminished earning capacity on the labor market and to help reinsert the disabled worker into an appropriate slot. As the California agency evolved it developed “rigid and myopic interpretations of rules pertaining to the assessment of disability, even when the very rationale of those rules called for greater openness and flexibility” [8, p. 2661.

The new centrality of medico-legal discourse created through workers’ compensation helped stim- ulate the growth of industrial medicine practice in the 1910s. Large companies began to subject their employees to the physician’s gaze. A 1914 survey of Ohio industrialists found they felt physical examinations “protected them against workmen’s compensation costs by providing evidence against fraudulent claims, and by enabling them to select employees who were unlikely to cause industrial accidents or contract occupational diseases” [ 141. Writing to the Wisconsin Industrial Commission on its impression of the new law, the John Lawson Manufacturing Company stated that “under the provisions of the law we feel that we would be justified in taking only men that are physically perfect” [ 151. Organized labor expressed vigorous opposition to the workplace physicals. Some companies also provided routine medical


services for workers; such contract medicine, part of the move to welfare capitalism, could help provide some workers with greater access to medical care.

The Medical Department at the Ford Motor Company did much more than simply administer pre-employment physicals to weed out compensation risks. “Doctors,” Henry Ford told the New York Times in 1914, “are in a better position to exercise a sort of watchfulness over the men than lawyers and superintendents, and our method is to have them to straighten out men who show evidences of not keeping up to their standard” [16].

In the 1910s and 192Os, employers’ attempts to hold down workers’ compensation costs and control their employees, the growth of welfare capitalism, and the heightened prestige of scientific medicine con- tributed to a growing medicalization of the relations between workers and employers. Workers’ bodies were placed under a medical scrutiny at work articulating closely with the medical scrutiny they might undergo in the workers’ compensation claims process.

Angela Nugent argues that the new medical examinations

helped to alter the balance of power in industry, and the examinations did form part of a major transformation in workers’ lives. Business executives consolidated control over the labor force as they increasingly commanded information essential to the production process. Just as engineers’ pre- scriptions replaced craftsmen’s expertise, industrial workers yielded the right to keep personal medical status private. Medical examinations in industry gave American corpora- tions access to the previously private “inner environment” of workers’ bodies in an age when workers did not have the right to such information themselves or to complementary knowledge about the hazards of the environments in which they labored. Medical information became a component of management strategy, to be used benevolently or exploita- tively, but in ways managers and company doctors determined [14, p. 5951.

Workers with a pre-existing disability might find themselves virtually unemployable because the employer’s compensation insurer considered them a bad risk. Massachusetts changed its law in 1927 under labor pressure to allow workers, with board approval, to waive their rights to workers’ compensation for a particular pre-existing condition that made them susceptible to injury or a recurrence of the condition. Between 1927 and 1931, 90 such waivers were approved and 47 disallowed [17]. The state, insurers, and employers each made their separate judgment about the employability of the individual as a possible high cost compensation risk. The chairman of the Massachusetts Industrial Accident Board characterized one case as “a man who is married, is 52 years of age, has nine children, and is subject to occasional epileptic fits. The report is that the waiver will insure his job. . . . If one refuses to employ him, they all will” [18].

An Oklahoma court ruled in 1926 that the last employer was responsible for paying compensation for permanent and total disability from blindness in a case where an employee lost the use of one eye on that job, having lost the use of the other eye prior to that employment. According to an Oklahoma insurance executive, after that decision between 7000 and 8000 “one-eyed, one-legged, one-armed, one-

handed men in the State of Oklahoma were let out and can not get employment coming under the workmen’s compensation law” [19]. As a way of providing employers with incentives to hire injured workers, some states developed second injury funds relieving employers of responsibility for payment for pre-existing injuries.

MEDKAL CARE

Workers’ compensation provided for the first widespread state entitlements to medical care. Physicians played little role in designing the system. “Medical spokesmen never forgot that they had been virtually excluded from panels drafting the statutes” [20]. The statutory right for injured workers to receive prescribed levels of medical care for their work-related injuries contrasted with their sparse insurance coverage for other injuries and illnesses. Health insurance plans of the day-whether run by employers, commercial companies, unions, or mutual aid societies- largely provided monetary benefits to tide injured workers over relatively short periods of disability, rather than paying for hospital or doctor bills directly. Workers in the hazardous trades were effectively priced out of the private market by high rates, or they were explicitly denied coverage (211. Large employers might provide some medical benefits for workers injured on the job; workers’ compensation made this a legal obligation for covered employees, including many small ones formerly providing little or no care. For poorly paid workers unable to afford private coverage or not part of a fund providing benefits, workers’ compensation provided some medical care they might have previously obtained on a charity basis, if at all.

Early workers’ compensation laws provided extremely limited medical benefits. States imposed rigid limits on the time period medical care would be reimbursed and/or dollar amount limits. Massa- chusetts, in its 1914 amendment, had a comparatively generous program of medical benefits for the time: no dollar limits and a 14 day time limit, with extensions possible at the board’s discretion [22]. New Jersey, on the other hand, provided medical care for 14 days with no extensions, subject to a $50 limit. Several states provided for no medical aid, or for medical aid only for the last sickness in fatal cases. Acts restricted the kind of medical aid provided: medicines, supplies, artificial limbs, and crutches were often left uncovered.

All but five of the state laws in the 1930s gave the employer and insurer the choice of the treating physician. This provision generated considerable hostility among injured workers. According to Penn- sylvania anthracite coal field industrial physician Frederick Van Sickle, during the first 6 months of the new law in his state, “The employee many times refused to accept the services of the employer’s surgeon, being suspicious that the treatment would not be as satisfactory or as competent as that offered by his usual family physician” [23]. However, because care was free to him, the injured worker might seek it more promptly than before for traumatic injuries, thus reducing the risk of life-threatening infections. No longer a charity case or incurring a bill he could

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not pay without extreme hardship, the injured worker, through his employer or its compensation insurer, now provided his treating physician and hospital with a secure reimbursement, even if it was typically, according to Van Sickle, “the minimum fee as usually charged in the community” [24]. To hold their costs down, employers might also establish contractual relations with health care providers. Employers’ and insurers’ control of the treating physician was their guard against malingering and excessive medical expenses. Treatment of the injured worker was conducted in a businesslike manner.

Approximately half the states in 1919 allowed large employers to continue running their health benefit plans as an alternative to workers’ compensation benefits if the plan was deemed at least equal to the statutory one. A survey of 375 large employers with welfare programs around that time found 71% ran a hospital or emergency room and 46% employed a doctor. For those admitted to a non-employer-owned hospital, the new workers’ compensation laws provided the hospital sufficient reimbursement to secure a semi-private room more frequently than before, when charity care and public wards were the usual form [25].

Both labor and industry feared the ‘medical graft’ of physicians padding their bills and driving up the cost of care. Rubinow described how these fears grew out of the employers’ liability experience:

Though seldom more than first aid was given, the physician was called in an emergency, and he was conscious of the double position, not only as the medical attendant, but also as possible important witness in defense of a liability suit. He presented substantial, sometimes extravagant bills, and the liability insurance company seldom found it advisable to oppose their size [22. p. 6141.

Medical benefits under the early workers’ compensation laws amounted to approximately one-third of all benefits paid for workers’ injuries. Through paying the bills and picking the doctors, insurers and employers could feel secure that treatment was not excessive. In cases where employers and insurers might expect that continued medical treatment beyond the statutory limits could speed the worker’s recovery and cut down disability payments, ‘non- statutory medical aid’ might be continued beyond the period prescribed by law [22].

Under the early workers’ compensation laws, employers were required to make a small effort to provide medical care that would conserve injured workers’ earning power. Rather than have workers purchase medical care from their indemnity benefits, the system mandated that employers pay for and provide a limited set of services that might treat the initial injury and limit earning capacity loss from the injury, a loss that could be a further drain on the workers’ compensation system through increased indemnity payments for permanent disability. Medical care was only in part provided to ease the pain of injured workers: within the workers’ compensation scheme medical care attempted to limit and stabilize the disabling conditions that were the basis for the permanent partial disability payments consti- tuting the bulk of expenditures. Workers with some disability were to be restored to their fullest working

capacity consistent with the statutory limits on treatment and the financial interests of employers and insurers.

This first American social insurance medical care program treated workers’ bodies largely as damaged commodities on the labor market. It was a form of entitlement to medical care, originated through a process of class struggle and its resolution, that attempted to preserve some of the lost labor power expended in the work-related injury form. Care was delivered in a manner that reconstructed some of workers’ subordinate status in the workplace into the medical care setting. As if to underscore their status as objects rather than active actors, workers, if they wanted their bills paid under the scheme, were not even allowed to choose their treating physicians. Workers were entitled to a limited amount of free medical care and some rehabilitation only for covered work-related injuries, and principally as these conditions affected their ability to earn money through selling their labor, rather than their health and needs in some more general sense.

MEDICO-LEGALIZATION

In the employers’ liability system an injured worker could go before members of his class to present an account of how members of another class, or members of his class acting for another class, inflicted injury on himself and his family. Although class issues were not part of the explicit discourse involved in trying cases, jurors brought such understandings with them into the courtroom. These cases where the employer’s fault was clearest, the worker’s responsibility least apparent, and the financial loss and pain the greatest had the highest potential return before juries. Juries in their compensation awards could assess damages based on a sense of the whole person’s losses, suffering, and needs.

Under workers’ compensation this fault inquiry into worker and employer conduct was eliminated. Rather than focus the process of transforming injuries into money through an inquiry revolving around who was at fault and what level of danger workers could be held to have assented to in their implied employment contract, bargaining would continue within fixed limitations on the amount of possible benefits, and litigation would center around medical issues, around questions of the nature and extent of disability. Workers would no longer have a chance to be made whole or to present their story before peers; workers would get something based on the value of their labor power (earning capacity) and the loss experienced in this value. Contests would no longer be over moral responsibility or extent of need; but rather, over whether the injury was within the scope of events the law deemed work-related, and what were the medical and disability circumstances surrounding it. The inquiries mediating resolution of class conflict involved in compensating numerous individual cases shifted from the terrain of individual moral responsibility to a ratio- nalized medico-legal one. Compensable injuries were administratively defined and processed within a set of statutorily created and judicially refined procedures and values.


Class struggle over the value of workplace injuries became partly medicalized, or, more exactly, ‘medico- legalized’. Conflict was contained within a neutral discourse created by the administrative necessity of adjudicating claims within the new statutory framework. Medical questions on the periphery of the employers’ liability system came to occupy a central place within the competing testimony and new forms of knowledge involved in the disability determinations called for by workers’ compensation. Class conflict over the value of work injuries was medicalized as it became played out in individual cases within a determinate legal context creating the terms of the medical inquiry, regulating the role of physicians, and setting the parameters of the process of turning medical judgments into money and medical care. Hence the term ‘medico-legalization’.

Nonet has characterized the process of legalization as “in part. . a growth of the relevance of law in practical problem-solving, as well as. . . the elabora- tion of legal rules and doctrines that occurs in this process” [8, p. 21. Medico-legalization may be thought of as, in part, the expansion of the process of making determinations and dispositions in individual cases representative of a social conflict within, or in the shadow of, a legally circumscribed structure involving a hybrid discourse framing the legal determinations and dispositions in medical terms. It often involves the process of neutralizing and containing politically volatile issues arising from the circumstances of the person in the case being processed. Conflicts may be played out within a state structure- a court, a quasi-judicial agency-through a set of rules and a medico-legal discourse that often removes elements of oppressive social causation of the condition from scrutiny, while creating the appearance of an objective, scientific inquiry into bodily and mental states. The setting itself, by conforming to the rules of law, invests the determinations with an aura of fairness and equity; however, the processing of cases occurs within a set of legal rights that themselves can become a focus of conflict over allegations of their violation.

Conflicts that are contained and suppressed within the administrative setting may still appear in the political arena; moreover, conflict may occur around setting the legal constraints and scope of medical authority within which the medico-legalization process proceeds. Adjudication of individual cases may provide the focal point around which public debate coalesces on the issue at hand. The medical and legal discourses merge to create the new medico-legal discourse that facilitates making determinations within an administrative context created as a form of moderating an evolving social conflict.

A process of medico-legalization in the new workers’ compensation system, secondary to the one involving determinations of compensability and extent of disability, occurred around the provision of medical care. Statutory and administrative guidelines established which conditions would be covered, how care had to be obtained, who was allowed to treat the patient, how long care could continue to be reimbursed, reimbursement rates, and what administrative procedures the parties had to follow to operate within the system. Medical care was not an

unconditional right in a separate health insurance scheme; rather, access to health care for the specific condition was tied to meeting the coverage requirements under the law. Medicine here took on a symbolic form as an indicator of the value of the worker: the determination of the right to care hinged on a showing of having a specific kind of worthy, i.e. work-related compensable injury. The primary pur- pose of medical care within the scheme was to limit loss of earning power; the value of the person expressed by his right to medical care inhered in his position as a carrier of labor power within a particular legally-shaped compensation market. The provision of medical care itself became part of the process of managing class conflict: the worker’s injury would be cared for free of charge to him if it was related to work-occurred in a zone of latent class conflict-but only under highly limiting constraints reflecting the imperatives of the workers’ compensation system mediating this class conflict. Other bodily conditions not part of the compensable injury lay outside the scope of coverage; the ‘whole person’, whom a few workers’ compensation laws acknowledged in theory, became divided into parts with different financing schemes for the medical care of conditions acquired under different circumstances.

Medico-legalization in its several forms was part of the process of the creation and expansion of the workers’ compensation system, a system that became more centrally and complexly medico-legalized as it evolved. Workers were subjected to medical scrutiny and personnel policies at work structured in part as a response to the extent and form of the liabilities imposed by the workers’ compensation system. The discipline of the body at work and the vitality lost through work became objects of a medico-legal discourse interpreting a limited range of work-related injuries as transformable into money and medical care. The injuries were nobody’s fault; they were simply unfortunate byproducts of the production and circulation of commodities and profits, to be processed in a fashion that was originally intended to be welfare-oriented and frictionless, but which became antagonistic and legalistic. Injuries were transformed from morally charged events acted out before juries into morally neutralized events scrutinized by doctors for bodily indications of lost earning power.

Medico-legal inquiries conducted by the state grow out of, give form to, and help channel forms of class conflict. Marx showed how such inquiries might help reveal the human cost of exploitative work relations read on workers’ bodies; however, to help form a complete critique these inquiries need to be supple- mented by a fuller account of the social relations of production and the workings of capital. Inquiries in state forums may help to fuel class struggle, as in the continual critical inquiry into employers’ fault for workers’ injuries conducted in the courts through the employers’ liability system. American workers helped create through their class struggle a new system recognizing in law some of the gains they had won in raising the value of their work injuries and obtaining a limited right to medical care for them. A new state structure, workers’ compensation agencies, oversaw a new medico-legalized administrative process in which the fault debate mediating the continual class conflict

1120 ANTHONY BALE ’

involved in transforming work injuries, often inflicted by employers’ creation of homicidal working conditions, into money and medical care was largely suppressed. The continuing class conflict over the value and meaning of workplace injuries was moder- ated as medicine helped rechannel the inquiry into the explosive questions of employer fault into a more manageable terrain. A new entitlement to medical care was created in the process, circumscribed by an administrative scheme that treated the injured worker not as a whole person but as a carrier of damaged labor power.

In Capital Marx demonstrated some of the ways medicine helps shape class struggle over the terms of the conditions under which labor power is expended in the production and distribution of capitalist commodities, including the struggle in compensation forums over the value and meaning of labor power expended in the work-related injury and illness forms. The role of medical inquiries, medical knowledge and practices, and the organization of medical care as products and shapers of class relations was not a focus of Marx’s explicit theorizing. American Marx- ism has an important project to do in developing both theoretical and empirical understanding of the changing relations of law, medicine, the state, and class struggle in American society. This article has begun such an analysis for one neglected watershed in American medical history.

A Marxist history of the suffering engendered by the transformation of the bodies and minds of American workers through the capitalist mode of production, conflicts over this suffering, and the forms of medicine developed to understand, alleviate, and manage elements of it has yet to be written. When it is, examination of forces shaping the changing ways work-related injuries and illnesses are transformed into money, meaning, and medical care will play a much more prominent part than they do in standard social histories of American medicine or accounts of American class relations.

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Medicine in the industrial battle: Early workers' compensation