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Pirates of the 18th century and a 19th century German “Iron” Chancellor preceded the United States in the creation of a social system for the protection of injured workers. The modern U.S. workers’ compensation system owes parts of its existence to this parentage.

Arrrrg, I’m Hurt!

Pirates, contrary to popular myth, proved to be highly organized and entrepreneurial. Prior to their assignment to the ranks of outlaws, they were considered highly prized allies of the government, plundering and sharing the spoils with governors of the pre-Revolutionary colonies who gave them a safe port.

Privateering (the gentleman’s term for piracy) was a dangerous occupation; taking booty away from those who did not want to give it up leads to sea battles, hand-to-hand combat and injury. Because of the ever-present chance of impairment, a system was developed to compensate injured “employees.” There was one catch: he or she (there were female pirates as well) had to survive the wounds to collect as there was no recorded compensation for death.

Piratesinfo.com provides some information regarding the amount of payment made to the injured:

• Loss of an eye — 100 pieces of eight (Spanish dollar);

• Loss of a finger — 100 pieces of eight;

• Loss of left arm — 500 pieces of eight;

• Loss of right arm — 600 pieces of eight;

• Loss of left leg — 400 pieces of eight; and

• Loss of right leg — 500 pieces of eight.

Average weekly wage for colonial Americans of this period equated to approximately two pieces of eight per week. Loss of an eye or finger would merit payment approximating 50 weeks of wages. The right arm was worth 300 weeks (a little less than six years). These compare rather closely to modern compensation schedules.

In addition to being compensated, injured crew members were allowed to remain on board and were offered less strenuous duty. The first return-to-work program was created.

Marxism, Socialism, Comp

Otto von Bismarck, the “Iron Chancellor” introduced “Workers’ Accident Insurance” in 1881. Phased in between 1881 and 1884, the program became the model for workers’ compensation programs in Europe and ultimately America.

Bismarck was not known as a socially conscious ruler; the working conditions of the common man were not necessarily foremost in his mind. History teaches that the unification and growth of Germany (Prussia) and the protection of his position were his main concerns. But Bismarck’s main political rivals were Marxist with socialist agendas — a feigned concern for the plight of the common man. On the top of this agenda was the creation of a social program for the protection of workers injured on the job, a workers’ compensation program.

The “Iron Chancellor” eventually outlawed Marxist and other socialist-leaning parties, securing his rule. However, he did borrow some of their ideas to keep peace among the people. Workers’ Accident Insurance became the first compulsory workers’ compensation program enacted in a modern, industrialized Europe.

England followed Germany’s lead replacing the outdated Employer’s Liability Act of 1880 with its own Workmen’s Compensation Act in 1897. The employer’s liability act was relatively expensive protection that depended on the court system. This is the same type of program common in America during the late 19th century and early 20th century.

America and Workers’ Compensation

America did not enjoin the workers’ compensation social revolution until the 1900s. Maryland (1902), Massachusetts (1908), Montana (1909) and New York (1910) each introduced workers’ compensation statutes. All four laws were struck down under constitutional challenge as violating “due process.”

New York’s 1910 act faced fierce opposition from labor unions. Union officials feared that state control of worker benefits would reduce the need for and popularity of the union. With socialized care and compensation, the necessity of the union was compromised and long-term loyalty to the union was in question.

On March 24, 1911, the New York Court of Appeals declared the state’s compulsory workers’ compensation law unconstitutional. One hundred forty-six (146) workers were killed the next day in a fire at the Triangle Waist Co. in New York City. Not all were killed in the fire, most died attempting to escape the flames, jumping from nine and 10 stories to the street below.

With no workers’ compensation system, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the dead. The owners were tried for manslaughter and acquitted. A civil suit against the owners netted each of 23 families $75 in damages (The Columbia Electronic Encyclopedia). New York finally adopted a workers’ compensation law in 1913 that would withstand constitutional challenges.

Employer Negligence

Prior to the enactment of workers’ compensation laws, the only source of compensation for any injured employee was through the courts. Employees had to prove the employer was negligent to gain any compensation for lost wages or medical bills. Employers utilized several defenses against charges of negligence:

• Assumption of Risk: Proving negligence requires evidence that a duty of care is owed. When an employee assumes the risk of an inherently dangerous or recognizably potentially dangerous activity, the duty of care is lifted off the employer. With no required duty of care, there can be no negligence. Employees in hazardous occupations were believed to understand the hazards and assumed the risk of injury;

• Contributory Negligence: Doctrine of defense stating that if the injured person was even partially culpable in causing or aggravating his own injury, he is barred from any recovery from the other party. This is an absolute defense; and

• Fellow Servant Rule: Defense against employer negligence asserting that an employee’s injury was caused by a fellow employee, not by the acts of the employer. If proven, negligence was not asserted against the employer and recovery could be severely limited or barred.

Very few workers had the means to bring suit. Those who could afford a lawsuit had to overcome the defenses available to the employer. The result: very few employers were held responsible for injury and required to pay. Awards for successful suits were unpredictable, ranging from too little to merit the trouble to more than the employer planned.

Congress enacted two laws to limit the harshness of these defenses. The Employers’ Liability Acts of 1906 and 1908 were federal attempts to soften the contributory negligence doctrine. These legislative attempts did little to protect injured workers from the ravages of defense attorneys and juries.

The Great Tradeoff!

Human capital (the value of the employee) became a driving force behind the push for a system of protection. Stories (although no evidence currently exists) of injured mine workers being laid at the door of their houses with no compensation or admission of negligence from the mine owners, leaving the families to struggle for a means of support and help, made their way through industrialized cities and states leading to demands for a better system. Recognition of the value of employees and other events between 1900 and 1911 helped spur the movement towards a social system of workers’ compensation in the U.S:

• 1908 — President Taft signed the first viable workers’ compensation statute into law with the creation of the Federal Employers Liability Act designed to protect railroad workers involved in interstate commerce (the program is still in existence today);

• 1908-1909 — Various states set up commissions to study the merits and drawbacks of a social system of injured employee compensation. Overwhelmingly these commissions reported that business, industry and employees supported such a system (the basis of study was the German law);

• 1910 — Crystal Eastman compiled and penned, “Work Accidents and the Law.” This document presented the problems inherent in the then-current system of negligence-based compensation in light of the cost to human capital. It also highlighted the benefits of a workers’ compensation program as preventative in nature (employers would be more willing to invest in safety if the cost of injury was ultimately on them). This work is credited with changing business and labor attitudes towards workers’ compensation and employee safety;

• 1911 — Triangle Waist Co. fire; and

• 1911 — “The Great Tradeoff” debate. Before any plan could move forward, an agreement between labor and industry had to be reached; each had to be willing to give up something for a workers’ compensation system to function properly.

The employer agreed to pay medical bills and lost wages, regardless of fault; and the employee agreed to give up the right to sue.

Wisconsin passed its workers’ compensation law in May 1911, becoming the first state to effectuate an on-going workers’ compensation program that survived legal challenges. Nine more states adopted workers’ compensation laws before the close of 1911. By the end of 1920, 42 states plus Alaska and Hawaii (even though statehood didn’t come for either until 1959) enacted workers’ compensation statutes. Mississippi was the last state to implement a workers’ compensation statute, waiting until 1948.

Voluntary vs. Compulsory

Early programs (1911-1916) were voluntary participation laws. Employers were not compelled by the various statutes to purchase workers’ compensation. Compulsory participation laws doomed earlier programs, being struck down as unconstitutional. The Fourteenth Amendment required due process before a person or entity could be compelled to part with property.

In 1917, the Supreme Court upheld the constitutionality of compulsory insurance requirements, opening the door for every state to require the purchase of workers’ compensation coverage. Then, as now, each state instituted different threshold requirements.

Workers’ compensation laws have evolved and expanded since the beginning, but these are the roots of the modern American workers’ compensation system.

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The subway escalators that run under the brick high-rise at the corner of East 15th Street in Union Square have long been in a near-constant state of disrepair. The developer of the building, a condominium named Zeckendorf Towers, built the escalators in the 1980s as a public benefit in exchange for approvals to develop the site. As part of the deal, the condominium association was responsible for the machinery’s maintenance.

But the escalator agreement did not provide for any enforcement of that upkeep, and the machinery spent years in various stages of idleness. Not until last year, following several news articles and pressure by the Metropolitan Transportation Authority did the owners replace them with modern, industrial-strength versions. Maxwell-Kates Inc., which manages the building, declined to comment.

There are more than 600 miles of subway track and hundreds of stations in New York City, and zoning requires that developers in high-density areas like Midtown Manhattan, Union Square and Downtown Brooklyn move nearby subway entrances into their property lines and renovate them. As a result, private entities may be responsible for public services, a situation that some experts say is not always ideal.

“The M.T.A. has learned the hard way that it is one thing to ask a developer to make an upfront capital investment, and quite another one to maintain something on a day-to-day basis over the years,” said Juliette Michaelson , the director of strategic initiatives at the Regional Plan Association, a policy, research and advocacy group. “In 10 years, when that escalator fails, who fixes it? These details must be worked out in advance.”

To improve its dealings with private developers, two years ago the transit authority quietly opened a three-person Office of Transit-Oriented Development. It hired Robert Paley, a real estate expert who spent time in the private sector — as an executive at AvalonBay Communities he helped develop Avalon Chrystie Place on East Houston Street — and also worked previously at the M.T.A. on projects like the Atlantic Terminal Mall in Brooklyn.

Mr. Paley and his team were given the task of spurring development around transit centers, mostly in suburban areas, and to coordinate the many public agencies and other stakeholders that are often involved in large, privately financed transit improvements. With the real estate market now beginning to thaw, his role may become more critical.

“It was very quiet when I first came onboard, but in the past several months, the phone in our office has begun ringing, indicating to me that developers are warming to the idea of building again,” Mr. Paley said.

Mr. Paley’s first big deal in New York City has been an agreement with Vornado Realty Trust to develop 15 Penn Plaza, a proposed office tower that would replace the Hotel Pennsylvania on Seventh Avenue between 32nd and 33rd streets. Vornado is hoping to construct a 2.05 million-square-foot office building, exceeding what is allowed under the current zoning.

In exchange, Vornado agreed to build and maintain transit improvements, including reopening the Gimbels Passageway that connects Herald Square and Penn Station. Under the proposed plans, it would transform the passageway, which was closed in the 1980s, into an 800-foot pedestrian concourse to rival Rockefeller Center.

Vornado has said it would not begin construction on the project until it secured an anchor tenant. Still, it wants to have all of its approvals in place in expectation of finding that tenant, and so last summer it negotiated a deal with the transit authority and the city. Known as a restrictive declaration, the agreement, which is recorded against the property and enforceable by the city, includes several clauses meant to prevent a repeat of the problems with the escalators at Zeckendorf Towers.

Among the requirements is that the transit improvements must be designed and agreed upon before the city will grant Vornado building permits. “Otherwise, if the construction starts, and the building moves quickly, there is a risk that the public improvements that were promised will get left behind,” Mr. Paley said.

To ensure that Vornado maintains the improvements, and in the event that 15 Penn Plaza changes ownership, Vornado must provide financing security, possibly in the form of a letter of credit. The developer also will be unable to get a temporary certificate of occupancy until the transit improvements are substantially completed, Mr. Paley said.

While 15 Penn Plaza may be the latest development to involve the M.T.A., the relationship between the agency and builders goes back nearly a century. One of the first buildings to have direct subway access was the Municipal Building at One Centre Street, designed by McKim, Mead & White. Completed in 1913, the building features subway lines that are directly connected to its base, with riders exiting through a covered entranceway featuring white Guastavino tiles.

“The building was one of the first to be totally intermodal, with a big archway that allowed for vehicular traffic as well,” said Fredric Bell, the executive director of the American Institute of Architects New York Chapter.

With its internal marble staircase, the Art Deco Chanin Building on East 42nd Street and Lexington Avenue “is one of the best examples” of a building with direct subway access, Mr. Bell said. “If you work in the building you don’t have to get wet, and if you are just passing through you can catch your breath before having to go out into the elements.”

Given the high rates of street crime in the 1970s and 1980s, developers began shunning direct access to the subway, and many passages, including the Gimbels Passageway, were closed. More recently, fears of terrorism have compounded these concerns. Other difficulties for landlords of buildings with direct subway access include insurance concerns related to slip-and-fall accidents among riders.

Subways are also highly trafficked areas, so the construction materials used are often more functional than attractive, like industrial light fixtures and simple ceramic tile. “Very rarely, if ever, does a subway station make your building look better — even if you upgrade it, it will never be equal to the finishes you are putting in elsewhere in the lobby,” said John Krush, an executive managing director at Newmark Knight Frank Project & Development Management, who advises tenants and developers.

“Most developers feel that the ideal option is for the subway entrance to be directly outside the building,” Mr. Krush said. “This makes brokers happy because they can market the building as ‘adjacent’ to subway transit.”

Still, many experts in the real estate industry say that dealing with the M.T.A. can be a headache. There are strict engineering requirements for building around the subway system, and the approval process can be slow. Now, with the advent of Mr. Paley’s office and the effort to increase transparency, the hope is that this process will improve.

“Any time a public agency decides to have an advocate, a person that can help developers make their way through the complexities of the process, the better it will be,” Mr. Krush said.

What is an Elbow Dislocation?

The elbow is a hinge joint, or a ball and socket joint, that is made up of three bones that come together. The first bone is in the upper arm and is called the humerus. The other two bones are in the lower arm and are known as the ulna and the radius. The hinge joint allows the elbow to straighten and bend and the ball and socket joint allows it to rotate.

An elbow dislocation occurs when the area where these three bones meet, becomes disjointed or out of joint. The injury can affect either, or both, the hinge joint and the ball and socket joint motions. Dislocations in the elbow can be partial or complete. A partial dislocation occurs when the joint is only partly disconnected and a complete dislocation occurs when the joint becomes completely disconnected.

Elbow dislocations are categorized as either simple or complex. In a simple dislocation there is no major injury to any of the bones. In a complex dislocation there can be injury to the bones, tendons, and ligaments. Dislocations are also classified based on the direction that the forearm bones were facing when the dislocation occurred. Classifications for elbow dislocations are as follows:

Posterior: the radius and ulna (forearm bones) go behind the humerus (arm bone).

Anterior: the radius and ulna go in front of the humerus.

Medial: the radius and ulna go inward in relation to the humerus.

Lateral: the radius and ulna go outward in relation to the humerus.

Divergent: the radius and ulna move in opposite directions in relation to the humerus.

What Causes Elbow Dislocations?

Although elbow dislocations do not occur frequently, the most common cause of any injury to the elbow is a fall on the hands or wrists with the elbow in an extended position. When a hand hits the ground in this position all of the intensity is forced to the elbow. The force of the fall usually involves a rotating motion as well and this can cause the elbow to be pulled out of its socket. No one, single sport causes elbow dislocations, but any sport in which there is a risk of falling on the hands as described earlier, increases the likelihood of an elbow dislocation injury. Sports that might put an athlete at risk include gymnastics, skateboarding, rollerblading, hockey, bicycling, football, and basketball.

What are the Symptoms of an Elbow Dislocation?

The most common symptoms are pain, swelling, and an inability to move the elbow. Complete elbow dislocations are very painful. The elbow will become swollen and red and may look misshapen. It can look as though it is deformed due to abnormal twists in the elbow. There is usually pain when trying to move the elbow or bend the arm. A partial dislocation is harder to diagnosis because the bones can move back into place and appear normal on the outside. In a partial dislocation the elbow is movable but pain is still present. There can be bruising on the inside and outside of the elbow with both a complete and a partial dislocation. If there is severe pain or a loss of feeling in the hands, there could also be damage to the arteries and nerves that run along the elbow.

Treatment Options for an Elbow Dislocation

The main objectives in treating a dislocated elbow are to realign the elbow to its proper position and to retain normal functioning of the arm. Because elbow dislocations are considered an emergency injury treatment will often be provided in an emergency room setting. Once in the emergency room a patient will usually be given pain medications, x-rays will be taken to determine the extent of damage, and the elbow will then be reset. If the dislocation is a simple one further treatment will include immobilizing the arm by placing it in a splint for two to three weeks, followed up with physical therapy to regain full range of motion in the arm.

In the case of a complex dislocation surgery may be needed to realign and bone and to repair any damaged nerves, arteries, tendons, and ligaments. Once a patient has healed from surgery physical therapy will be employed to regain full range of motion in the arm. There is an increased risk, with a complex dislocation, of arthritis in the injured arm.

As a nationally certified Medical Assistant, I have had the opportunity to work in several different fields of medicine including sports medicine. Elbow dislocations are not as common as other sports injuries and usually require longer periods of physical therapy in order for the joints and bones to heal properly and to regain full use of the arm again.

NEW YORK, NY (03/15/2011)(readMedia)– An accountant was arrested Monday for falsifying the payroll records of a Syracuse cab driver who was killed in a January 2009 robbery so it would appear that the driver was working for a company covered by workers’ compensation insurance.

Vincent Kukys, 66, is accused of changing the payroll records of Timothy Gordon, to show Gordon as being employed by Century Taxi & Transportation. In fact, Gordon was driving for Yellow Taxi when he was killed in the robbery.

Both Yellow Taxi and Century are owned by Frank Manzi. Yellow Taxi did not have workers’ compensation insurance at the time of Gordon’s death; Century did have coverage.

Workers’ compensation benefits are used to pay death benefits to the beneficiaries of employees killed in work-related incidents.

Kukys was arrested by Onondaga County sheriffs after a joint investigation by the New York State Insurance Department’s Frauds Bureau, the New York State Insurance Fund and the New York State Workers’ Compensation Board Office of the Inspector General.

A forensics examination of Kukys’s computer showed that Gordon was added as a Century employee after his death. Kukys performed payroll and accounting services for Manzi.

Kukys was charged with three felonies, first degree counts of perjury, offering a false instrument for filing and workers’ compensation fraud. Future court action is pending. He could be sentenced to up to seven years in prison if he is convicted.

The case is being prosecuted by Onondaga County Assistant District Attorney Beth Van Doren.

Last year, Yellow Taxi was ordered to pay $5,000 restitution to the Insurance Fund after pleading guilty to charges of possession of a forged instrument and offering a false instrument for filing. The charges stemmed from accusations that the company falsified workers’ compensation and employment liability insurance applications.

Three men were prosecuted in Gordon’s killing.