Does no-fault mean no blame?
From the early twentieth century workers' compensation systems were designed to replace tort action against the employer, to provide benefits to workers regardless of their fault or that of their employer, and to this day, all workers' compensation systems in Canada, and some systems in Australia, prohibit tort based law suits against employers for work-related injury in exchange for the right to “no-fault” compensation. The degree of protection from law suits that is accorded to employers varies, but in its broadest application, in some Canadian provinces, employers may not even be sued for sexual harassment or bullying, or any other human rights violation, if the plaintiff seeks damages for physical or mental health problems attributable to these human rights violations [Lippel, 2011]. While the replacement of tort based claims by “no-fault” compensation is a positive step, eliminating what Ison accurately described as the forensic lottery [Ison, 1968], the elimination of tort does not imply that workers' compensation is a non-adversarial system as the adversarial nature of a process does not necessarily imply that the claim has been the object of litigation [Strunin and Boden, 2004]. Nor does the elimination of tort preclude attribution of blame, particularly with regard to the victim [Lippel, 1999]. The invitation addressed to employers on claim forms to contest claims, or the availability of “snitch lines” on workers' compensation board websites are just two illustrations of ways in which systems encourage an adversarial process, long before a claim is denied or an appeal is filed [Eakin et al., 2009]. As we shall see, disability and absence management systems may also be perceived as confrontational in Canada [MacEachen et al., 2010], Great Britain [Coole et al., 2010], and Australia [Roberts-Yates, 2006].
Workers' experience of workers' compensation systems vary considerably, depending on many variables [Grant and Studdert, 2009]. Those with visible, physical injuries that occur as a result of acute trauma are less likely to have a confrontational relationship with a compensation system than those who suffer from soft tissue injury, neurological damage, mental health problems, or from controversial illnesses [Lippel, 2008]. Those suffering from fibromyalgia [Fabris, 2004; Le Page et al., 2008], multiple chemical sensitivities [Astroff, 1998; Phillips, 2010], and musculo-skeletal disorders [Reid et al., 1991; Lippel, 2003a; Morse et al., 2003] are often subjected to a highly adversarial process which encourages under-reporting.
Those suffering from occupational diseases, even notorious occupational diseases like lung cancer and asbestosis, will have a more difficult experience with the compensation system than those suffering from a traumatic injury, regardless of whether litigation is required [Leigh et al., 1999]. Under-reporting of occupational disease is known to be high in many jurisdictions [Shannon and Lowe, 2002; Biddle and Roberts, 2003; Morse et al., 2004; Réseau ‘Surveiller les Cancers d'Origine Professionnelle en Seine Saint-Denis’ (GISCOP93), 2005], although a significant number of acute injuries have also been shown to go underreported in Canada [Shannon and Lowe, 2002; Vézina et al., 2011] and the United States [Azaroff et al., 2002]. In highly adversarial systems even those suffering from acute trauma as a result of obvious industrial accidents may well be submitted to abusive contestation and suggestions of “moral hazard,” strategies that contribute to underreporting [Boden et al., 2001]. Recent U.S. estimates indicate that the “proportion of self-reported work-injured persons for whom medical treatment was paid by workers' compensation insurance ranges from 47% in Texas to 77% in Kentucky” [Centers for Disease Control and Prevention (CDC), 2010].
Women [Chung et al., 2000; Lippel, 2003a], members of racialized or linguistic minorities [Herbert et al., 1999; Premji et al., 2008a] and immigrant workers [Azaroff et al., 2004; Gravel et al., 2010; Guthrie and Quinlan, 2005] have been shown to have more difficulties in accessing compensation. Studies in Canada [Ison, 1986; Lippel, 1999; Beardwood et al., 2005; Eakin, 2005; Lippel, 2007; MacEachen et al., 2007a, 2010], Australia [Roberts-Yates, 2003; Sager and James, 2005], and the United States [Lax and Manetti, 2001; Strunin and Boden, 2004] have shown that many workers' compensation claimants report feeling stigmatized by the process, blamed for being an injured worker, and shunned by the community and healthcare professionals because of their status as an injured worker.
A second, and related issue is the imbalance in power between workers, the compensation system and employers [Beardwood et al., 2005]. The adversarial nature of the process exacerbates this imbalance, and when litigation is frequent, adverse health consequences may be more prevalent.
The adversarial nature of a system is thought to increase in systems that are highly experience rated [Ison, 1998; Pransky et al., 1999; Lippel, 2007; Quinlan et al., 2010]. Although appeals are only a small part of the adversarial process, an increase in appeals over the years can provide an indicator of the increasing adversarial nature of the system.
Focus on a Québec example illustrates the mechanisms by which experience rating contributes to the adversarial nature of the compensation process. Although accident prevention legislation in Québec has been in force since the nineteenth century, the Québec occupational health and safety system was ranked among the worst in North America [Block and Roberts, 2000]; occupational health and safety committees are not mandatory in the vast majority of workplaces, and fines are remarkably low. The same institution is responsible both for workers' compensation and occupational health and safety; experience rating, rather than rigorous occupational health and safety regulation is the primary deterrence strategy. A variety of system actors interviewed [Lippel, 2007] have noted an increase in contestation of claims since the 1990s, when emphasis on experience rating was accentuated. In an early study measuring the effect of increased experience rating in Québec [Thomason and Pozzebon, 2002] it was found to be associated with aggressive claims management practices, as well as prevention practices. While some workers have described the actual appeal hearing as having therapeutic effects, practices associated with the appeals process are often prejudicial to workers' health. For example, clandestinely obtained videotape evidence of injured workers' activities is regularly admitted into evidence or used to encourage workers to withdraw their claims [Lippel, 2003b]. More than half the appeals are settled through the conciliation system [Aubé, 2008], and often workers withdraw their claims in exchange for monetary compensation paid unofficially by employers who save money by avoiding experience rated benefits and health care. Studies looking at mediation processes in Québec workplaces suggest, by analogy, that contestation by employers may be driven by the opportunity to strike a deal in the conciliation process [Poitras et al., 2005]. While alternative dispute resolution mechanisms were designed to avoid trials involving injured workers some studies have found they can also exacerbate the imbalance between workers and the compensation system in Australia [Guthrie, 2002a] or worker and employer litigants in Canada [Aubé, 2009].
Independent appeal tribunals have existed in Québec since 1975, and while the number of occupational injuries compensated has been going down significantly over the past 10 years, the number of appeals has increased substantially, as can be seen in Table I.
Table I. Claims, Accepted Claims, and Appeals (Québec, 1999–2009)
|1999–2000||164890||143517 (87%)||20922 (13%)|
|2004–2005||152799||132906 (87%)||27141 (18%)|
|2009–2010||115720||95597 (83%)||32393 (28%)|
The adversarial nature of the Québec system triggers behaviors, like employer mistrust and recourse to private detectives, that stigmatize workers. Other Canadian workers' compensation systems have fewer appeals than in the Québec scheme, as can be seen in Table II.
Table II. Appeals to Final Appeal Tribunal as Compared to Number of Initial Claims (British Columbia and Ontario, 2000–2009)
|2000||4757/184131 (2.6%)||6178/379097 (2%)|
|2004/2005||5880/164443 (3.6%)||4490/352996 (1%)|
|2009||4767/141968 (3.4%)||3900/249477 (2%)|
The lower proportion of initial claims that go to the final appeal tribunal in those provinces may be attributable to a variety of reasons including less sensitive experience rating mechanisms, less recourse to alternative dispute resolution mechanisms at the appeal level, better access to worker representation through the Office of the worker advisor and access to a Fair Practices Commission [Fair Practices Commission of Ontario, 2009]. However, the disparity may be partially explained by the fact that tribunals in Ontario and British Columbia have less latitude and independence than the Québec appeal tribunal because those in British Columbia and Ontario are essentially bound by compensation board policy and not just legislation. In those provinces, the inability to question decisions based on policy of the Board, could well contribute to the exacerbation of the feeling of imbalance. Despite the lower level of appeals, at least in Ontario, experiences of those with complex claims confirm that contestation of claims even at the initial adjudication level contributes to negative consequences for workers' health and employment prospects [MacEachen et al., 2010].
Does workers' compensation protect claimants' dignity by preventing stigma and ensuring balance?
Studies have identified specific aspects of compensation systems that contribute to adverse health effects, and addressing these systemic issues would be a first step in reform. Mechanisms by which the adverse effects target workers are often imbedded in seemingly neutral legislative provisions, so it is important to examine both the immediate causes of negative experiences, and the technical provisions of legislation that facilitate or undermine smooth access to the compensation system.
A Québec study [Lippel, 2007] identified three primary issues that explained many of the negative health consequences reported by the workers: stigma, imbalance of power and lack of social support. Workers, including some workers whose claims had been accepted without contestation, reported being “treated like a criminal” or feeling like David confronting Goliath. They expressed with 93 different terms the negative emotions associated with the process; positive experiences were expressed in 23 terms, including feeling “lucky” to have been supported by their union or “proud” to have made it through the process. Those who had social support were more likely to get through the process unscathed, while those who were isolated often reported negative health effects, affecting both their physical and mental health. Sources of social support were varied, and included family members, the treating physician and the worker's union or lawyer, but also the presiding judge in the appeal hearing and occasionally, but less often, the workers' compensation adjudicator. Although every actor in the system was a potential source of stigma, those mentioned most often were physicians working for the employer or the compensation system, employer lawyers at appeal hearings, and, in some cases, adjudicators working for the workers' compensation board. Perhaps the most damaging of all was the use, and the specter, of private detectives hired by employers and the Compensation Board to spy on the workers, clandestinely filming those who were perceived to be making movements that were contraindicated by their medical condition [Lippel, 2003b]. This practice contributed both to the stigmatization of workers, and to the feeling of helplessness described by those with the most severe adverse health consequences. Workers' advocates mentioned that suicide prevention strategies were part of their job.
Studies in other Canadian provinces have also identified stigma as a significant issue for injured workers. In Ontario [Eakin and MacEachen, 2003], having a work accident was shown to undermine relationships between employers and workers in small businesses, often because employers in that system felt they were required to police the legitimacy of the worker's claim. This led to distrust between workers and employers, and a new feeling of disrespect for the workers who claimed compensation. The specific role conflicts governing the behavior of front line adjudicators of compensation boards may also contribute to the perception of the system as adversarial, and the stigmatization of claimants [Eakin et al., 2009]. Some workers' compensation boards have explicitly acknowledged the need to reduce stigma towards injured workers and have proactively sought to promote workers' dignity in the compensation process [Eakin, 2010].
Stigma associated with workers' compensation does not necessarily stem from the system itself. Widely held beliefs about injured workers or compensation contribute to the process of stigmatization. Among the vehicles for these beliefs is the concept of moral hazard [Boden et al., 2001].
The scientific community sometimes contributes to stigma, acting as a proponent of the discourse of moral hazard. For example, epidemiologists sometimes include the “compensation issue” as a variable in predicting duration of disability, and sometimes conclude that those subjects who are involved in the compensation process will take longer to heal than the other subjects, an approach that is the subject of scrutiny and that can be problematic [Grant and Studdert, 2009; Spearing and Connelly, 2011]. Studies may confuse receiving benefits with being a claimant, or equate having contacted a lawyer with being in the compensation system; they do not necessarily distinguish between the tort system and workers' compensation and are then cited to show that workers' compensation increases duration of disability. Those studies that measure “compensation” by having contacted a lawyer usually do not discuss why a subject would need a lawyer, and may use benefit duration to measure disability. From a legal perspective, there can be many explanations as to why benefits are paid for a longer period to claimants who have access to lawyers, yet some of these studies conclude that it is the fact that compensation is provided that prolongs disability. Some of these studies may be used to suggest that compensation itself is bad for the worker's health, yet they have no information on the process to which workers are subjected in an adversarial context [MacEachen et al., 2010]. This approach is built on the premise of “moral hazard”[Dembe and Boden, 2000; Campolieti, 2002], that access to benefits will prolong duration of disability, implicitly, or explicitly suggesting malingering, and as such contributes to the stigmatization of workers' compensation claimants. Recent research warns against the use of such studies in the redesign of compensation systems [Spearing and Connelly, 2011].