Bits of work in progress, more to say but it’s late and I’m very tired. I’ll probably fill in more details in this post rather than post anew. This post follows on from this and this and this.

On Wednesday, September 13th, 1922, an explosion blinded W. A. Nease while he was working at the Hughes Stone Company, in Oklahoma. The explosion blinded Nease in his right eye. He had already been blind in his left eye. Nease sought compensation under Oklahoma’s Workmen’s Compensation law. He received $16.15 per week for 100 weeks.

Nease sued, arguing that he should be considered permanently and totally disabled according to Oklahoma law, and so should receive more per week and more weeks. Nease lost his initial suit. He appealed to the Oklahoma State Supreme Court and won. The court granted him 500 weeks of pay at two thirds of his weekly salary.

The basic point behind the Oklahoma court’s decision was that in cases of compensation for workplace injuries employers should be liable for the total post-injury condition of the injured. This claim sounds reasonable enough today, I should think. The decision in Nease v. Hughes Stone (114 Okla. 170; 244 P. 778; 1925 Okla. LEXIS 1025), however, is more complicated; similarly that basic point is more complicated than it first appears.

In its decision in Nease, the Oklahoma court read the law of workmen’s compensation in Oklahoma, engaging with the statute’s attempt to put a price on lost eyes. Oklahoma law stipulated that an eye lost in the course of work was worth the equivalent of 100 weeks at two thirds salary. By pegging lost body parts to pay, as was common in workmen’s compensation, the law effectively stated that the bodies of lower paid workers were worth less than those of higher paid workers.

The court cited the New York Supreme Court in Schwab v. Emporium Forestry (167 A.D. 614; 153 N.Y.S. 234; 1915 N.Y. App. Div. LEXIS 8236). While at work on July 6th, 1914 Jacob Schwab lost his right hand, his only hand. For a one handed worker, the court reasoned, the sole remaining hand had “double value on account of the previous loss of the first hand.” Instead of compensating Schwab for the loss of one hand, the New York court decided that Schwab should be compensated for being rendered handless. The Oklahoma court cited this reasoning and followed the basic idea.

The courts’ route to compensating total post injury condition was not so straightforward as it may sound. In the process of arriving at the idea that injured workers like Schwab and Nease should be compensated for being rendered handless and sightless, respectively, the courts engaged in some monetary calculations.

The New York court reasoned that if Schwab had had two hands and had earned twenty dollars per week then the loss of his hand would have granted him just over $3500, because “[t]he method of payment of compensation for the loss of one hand [was] to allow sixty-six and two-thirds per centum of the salary which the injured party was earning for 244 weeks.” The court compared the hypothetical two handed worker with a one handed worker. The court assumed the one handed worker to earn “say $ 10 a week.” Such a worker on losing the sole remaining hand would receive under the same formula only around $1600. A one handed person’s hand should be doubly valuable, not half as valuable, the New York court reasoned. To say otherwise would be an “anomalous result” that obviously “the Legislature could not so have intended.”

The central presupposition to the court’s reasoning was that a one handed worker would provide “less efficient service” and thus receive lower wages. “If a man has two hands,” the opinion in Schwab reads, “he is presumably a more efficient worker and can receive higher wages than if crippled by the loss of one hand.” The court assumed that a one handed worker’s single hand would be doubly valuable to that worker, and that that worker would be half as efficient and thus receive half the wages as a two handed worker. If the one handed worker lost the sole remaining hand, then the doubly valuable hand would be compensated at half the value of one hand beloning to a previously two handed worker. The court found that conclusion unacceptable, because the discrepancy was too great.

The New York court’s argument was not egalitarian. It explicitly justified wage inequalities for disabled workers. What is more, it explicitly argued that the bodies of disabled workers were worth less than those of able bodied workers. The court did so by embracing the idea of compensating workers based on their pre-injury earnings and the idea that lower wages for disabled workers were a justified practice on the part of employers. The court compared a one handed and a two handed worker. If each suffered an accident leaving each with no hands, each should be considered permanently disabled, but the worker who lost two hands would receive more money – not because of the greater injury but because of higher pre-injury wages. “As the man with one hand is presumably earning less wages than a man with two hands, to allow for the loss of the second hand as a permanent total disability, a percentage of the weekly wage that he was then earning would be in complete harmony with compensation to one who had lost both hands by the accident, who receives his sixty-six and two-thirds per cent upon the greater wages that he was earning at the time of the accident.”

The Oklahoma court in Nease v. Hughes Stone followed a similar line of reasoning with regard to wages paid to disabled workers. Nease’s employer, the Hughes Stone Company, knew that Nease had only one eye, the court argued. As such, Nease “was presumably paid the wages which a man in that impaired condition was worth in that service.” As a one-eyed employee “Nease’s weekly wages were doubtless reduced accordingly, so that at the time of his last injury he was receiving as wages only such wages as he was entitled to, owing to his impaired capacity when he entered the service of his employer.” Nease should be compensated as permanently and totally disabled, the court ruled, but compensated at a lower rate than what which would have been received by a two-eyed person rendered blind in an accident.

The courts’ ruling on injuries to disabled workers had a contradictory cast. They argued for greater compensation for injured disabled workers than some employers and some industrial commissions argued. At the same time, they asserted that employment discrimination against disabled people (discrimination in the form of paying lower wages to disabled workers) was fair and reasonable. [SEE BAYNTON. MARX, SNLT?] In doing so, they argued that the destruction of disabled people’s bodies at work was less important (measured in dollar amounts) than the destruction of the bodies of able-bodied people.

At the level of reasoning, the courts’ rulings both worked for a measure of greater compensation for disabled people and affirmed elements of employment discrimination. In their effects, the rulings were ambiguous. The very reasonable point that employers should be liable for the total post-injury condition of the injured employee helped touch off a wave of firings of disabled workers. Employers appear to have thought that if they were liable for the total post-injury condition of an injured employee, and if employees were going to get hurt on the job, then it made business sense to try to hire people who would have as a high as possible of a total capacity after injuries.

[HUGHES STONE AND FIRINGS]

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