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Workers' Compensation | NAIDW

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 From Wikipedia, the free encyclopedia

Workers' compensation (colloquially known as workers' comp or workman's comp in North America and compo in Australia) is a form of insurance that provides compensation medical care for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain." While plans differ between jurisdictions, provision can be made for weekly payments in place of wages (functioning in this case as a form of disability insurance), compensation for economic loss (past and future), reimbursement or payment of medical and like expenses (functioning in this case as a form of health insurance), and benefits payable to the dependants of workers killed during employment (functioning in this case as a form of life insurance). General damages for pain and suffering, and punitive damages for employer negligence, are generally not available in worker compensation plans. Employees' compensation laws are usually a feature of highly developed industrial societies, implemented after long and hard-fought struggles by trade unions. Supporters of such programs believe they improve working conditions and provide an economic safety net for employees. Conversely, these programs are often criticised for removing or restricting workers' common-law rights (such as suit in tort for negligence) in order to reduce governments' or insurance companies' financial liability. These laws were first enacted in Europe and Oceania, with the United Statesfollowing shortly thereafter.

Compensation before statutory law

Before the statutory establishment of workers' compensation, employees who were injured on the job were only able to pursue their employer through civil or tort law.[1] In the United Kingdom, the legal view of employment as a master-servant relationship required employees to prove employer malice or negligence, a high burden for employees to meet. Although employers' liability was unlimited, courts usually ruled in favor of employers, paying little attention to the full losses experienced by workers, including medical costs, lost wages, and loss of future earning capacity.

Statutory compensation law

Statutory compensation law provides advantages to employees and employers. A schedule is drawn out to state the amount and forms of compensation to which an employee is entitled, if he/she has sustained the stipulated kinds of injuries. Employers can buy insurance against such occurrences. However, the specific form of the statutory compensation scheme may provide detriments. Statutes often award a set amount based on the types of injury. These payments are based on the ability of the worker to find employment in a partial capacity: a worker who has lost an arm can still find work as a proportion of a fully-able person. This does not account for the difficulty in finding work suiting disability. When employers are required to put injured staff on "light-duties" the employer may simply state that no light duty work exists, and sack the worker as unable to fulfill specified duties. When new forms of workplace injury are discovered, for instance: stress, repetitive strain injury,silicosis; the law often lags behind actual injury and offers no suitable compensation, forcing the employer and employee back to the courts (although in common-law jurisdictions these are usually one-off instances). Finally, caps on the value of disabilities may not reflect the total cost of providing for a disabled worker. The government may legislate the value of total spinal incapacity at far below the amount required to keep a worker in reasonable living conditions for the remainder of his life. A related issue is that the same physical loss can have a markedly different impact on the earning capacity of individuals in different professions. For instance, the loss of a finger could have a moderate impact on a banker's ability to do his or her job, but the same injury would totally ruin a pianist.

Statutory compensation in the United States

At the turn of the 19th century workers’ compensation laws were voluntary for a couple of reasons. Specifically, an elective law made passage easier and many felt that compulsory workers’ compensation laws would violate the 14th amendment due process clause of the U.S. Constitution. Since workers’ compensation mandated benefits without regard to fault or negligence, many felt that compulsory participation would deprive the employer of property without due process. The issue of due process was resolved by the United States Supreme Court in 1917 when in New York Central Railway Co. v. White it was held that an employer’s constitutional rights weren't affected. After the ruling most states enacted new compulsory workers’ compensation laws. In 1855, Georgia and Alabama passed Employer Liability Acts; 26 other states passed similar acts between 1855-1907. These acts simply permitted injured employees to sue the employer and then prove a negligent act or omission.[11][12] (A similar scheme was birthed in Britain's 1880 Act.[13]) After Germany's 1884 Act, workers' compensation laws began to be reformed to reduce the need for litigation, and to mitigate the requirement that injured workers prove their injuries were their employer's "fault". For example, The 1897 British Act replaced the 1880 Act. In the United States, the first state such worker's compensation law was passed in Maryland in 1902, and the first law covering federal employees was passed in 1906.[14] (See: FELA, 1908; FECA, 1916; Kern, 1918.) By 1949, all states had enacted some kind of workers' compensation regime.[15] Such schemes were originally known as "workman's compensation," but today, most jurisdictions have adopted the term "workers' compensation" as a gender-neutral alternative. In the United States, most employees who are injured on the job have an absolute right to medical care for any injury, and in many cases, monetary payments to compensate for resulting temporary or permanent disabilities. Most employers are required to subscribe to insurance for workers' compensation, and an employer who does not may have financial penalties imposed. Texas employers have the unique ability to opt out of the Workers' Compensation system under the original state law written in 1913. However, those employers, known as nonsubscribers, still need insurance coverage in the event of workplace injury. This then is how the nonsubscription industry in Texas began. Nonsubscription has proven to be a highly successful free market alternative to the government run workers' compensation system in Texas. Over 40% of Texas employers are nonsubscribers, including many of the state's larger and better known employers such as the H-E-B Grocery Company. Historically, these employers have had significantly greater satisfaction ratings and reduced expenses when compared to the workers’ compensation system.[16] In many states, there are public uninsured employer funds to pay benefits to workers employed by companies who illegally fail to purchase insurance. Insurance policies are available to employers through commercial insurance companies: if the employer is deemed an excessive risk to insure at market rates, it can obtain coverage through an assigned-risk program. Workers' compensation is administered on a state-by-state basis, with a state governing board overseeing varying public/private combinations of workers compensation systems.[17] The federal government has its own workers' compensation program, subject to its own requirements and statutory parameters for federal employees. In the vast majority of states, workers' compensation is solely provided by private insurance companies. 12 states operate a state fund (which serves as a model to private insurers and insures state employees), and a handful have state-owned monopolies. To keep the state funds from crowding out private insurers, they are generally required to act as assigned-risk programs or insurers of last resort, and they can only write workers' compensation policies. In contrast, private insurers can turn away the worst risks and can write comprehensive insurance packages covering general liability, natural disasters, and so on. Of the 12 state funds, the largest is California's State Compensation Insurance Fund. The federal government pays its workers' compensation obligations for its own employees through regular appropriations. The California Constitution, Article XIV section 4, sets forth the intent of the people to establish a system of workers' compensation. This section provides the Legislature with the power to create and enforce a complete system of workers' compensation and, in that behalf, create and enforce a liability on the part of any or all employers to compensate any or all of their employees for injury or disability, and their dependents, for death incurred or sustained by said employees in the course of their employment, irrespective of the fault of any employee. Further, the Constitution provides that the system must accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character. It was the intent of the people of California when they voted to amend the state constitution in 1918, to require the Legislature to establish a simple system that guaranteed full provision for adequate insurance coverage against liability to pay or furnish compensation. Providing a full provision for regulating such insurance coverage in all its aspects, including the establishment and management of a State compensation insurance fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, in that the administration of such legislation accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character. All of which matters is the people expressly declared to be the social public policy of this State, binding upon all departments of the State government.[18] It is illegal in most states for an employer to terminate or refuse to hire an employee for having reported a workplace injury or filed a workers' compensation claim. However, it is often not easy to prove discrimination on the basis of the employee's claims history. To abate discrimination of this type, some states have created a "subsequent injury trust fund" which will reimburse insurers for benefits paid to workers who suffer aggravation or recurrence of a compensable injury. It is also suggested that laws should be made to prohibit inclusion of claims history in databases or to make it anonymous. (Seeprivacy laws.) Employees may not falsely claim benefits. There have been instances where the sub rosa videos recorded by private investigators show employees engaging in sports or other strenuous physical activities, although the employees allegedly suffered disability or injury.[citation needed] Such evidence may not be admissible at a trial, if it is found that the taping infringed on the employees' reasonable expectation of privacy.[citation needed] Some employers vigorously contest employee claims for workers' compensation payments. In any contested case, or in any case involving serious injury, a lawyer with specific experience in handling workers' compensation claims on behalf of injured workers should be consulted. Laws in many states limit a claimant's legal expenses to a certain fraction of an award; such "contingency fees" are payable only if the recovery is successful. In some states this fee can be as high as 40% or as little as 11% of the monetary award recovered, if any.[citation needed] In the vast majority of states, original jurisdiction over workers' compensation disputes has been transferred by statute from the trial courts to special administrative agencies.[citation needed] Within such agencies, disputes are usually handled informally by administrative law judges. Appeals may be taken to an appeals board and from there into the state court system. However, such appeals are difficult and are regarded skeptically by most state appellate courts, because the point of workers' compensation was to reduce litigation. A few states still allow the employee to initiate a lawsuit in a trial court against the employer. Ohio allows appeals to go before a jury.[19] Various organizations focus resources on providing education and guidance to workers' compensation administrators and adjudicators in various state and national workers' compensation systems. These include the American Bar Association (ABA), the International Association of Industrial Boards and Commissions (IAIBC), and the National Association of Workers' Compensation Judiciary (NAWCJ).

Statutory compensation in Florida

Florida workers’ compensation (WC) is a statutory program defined primarily by Chapter 440 Florida Statutes. Florida WC provides two primary benefits to workers with work-related injuries or illnesses. Medical care is defined by F.S. 440.13. Medical benefits may be delivered through a “managed care” plan, at the option of the employer. Indemnity, or “income replacement,” benefits are defined by F.S. 440.15. Indemnity is divided into “temporary” and “permanent.” These are expressions of “duration.” Each duration measure is subdivided into “partial” and “total” disability. These are expressions of “extent.” Indemnity is therefore potentially available for “temporary total,” “temporary partial,” “permanent partial,” and “permanent total.” Governmental oversight responsibility for the system is divided between the Division of Workers’ Compensation (DWC) and the Office of the Judges of Compensation Claims (OJCC). The DWC is part of the Department of Financial Services (DFS) and regulates the reporting of workplace injuries and illnesses. Insurance companies and self-insured employers are obligated to report claim information to the DWC thereafter. Examples of required data submissions include payment of medical bills, inception and cessation of indemnity benefits, and closure of the claim. The DWC also provides advice and assistance to injured workers through the Ombudsman or “Employee Assistance Office,” commonly called the “EAO.” The OJCC is an independent agency within the Division of Administrative Hearings (DOAH). An injured worker seeking benefits that are not administratively provided by the employer or its insurance carrier may seek an order from the OJCC compelling provision of that benefit(s). The request is made in the form of a “petition for benefits” or “PFB,” which is defined in F.S. 440.192. Each PFB is assigned to a Judge of Compensation Claims (JCC) in the geographic region in which the accident or illness occurred. Florida is divided into 17 such regions, called “Districts.” Each District is staffed by one to five JCCs. There are 33 JCCs in Florida. The filing of a PFB automatically triggers the court to order a mediation conference, which must be held within 130 days after the filing of the petition. Many claims for benefits are resolved between the parties before the mediation conference. Those issues that are not resolved before or during mediation will be scheduled for trial, or final merit hearing, before the assigned JCC. The final hearing must be held and concluded within 90 days after the mediation conference is held, allowing the parties sufficient time to complete discovery. The decisions of each JCC are reviewable by the First District Court of Appeal in Tallahassee, FL.

Statutory compensation in New York state

Workers' compensation is required by law for business owners to have in place for their employees. In March 2007, the state of New York adopted major reforms to its Workers' Compensation law. These reforms included an increase in available temporary disability payments for injured workers with the trade-off being that lifetime permanent partial disability benefits are no longer available for injuries after July 1, 2008. As with many systemic changes to broad legal schemes, the reforms have spawned significant litigation to clarify the meaning of many of the changed statutory sections. The Workers' Compensation Board has also attempted to resolve many more cases administratively, meaning that no hearing may be held to resolve a particular dispute, but this change has had unintended consequences. For example, injured workers may not sufficiently understand their rights, since an administrative decision may easily be confused with a proper legal determination (which it may not be). Injured workers are advised to consult an experienced Workers' Compensation attorney since consultation is free (a lawyer in New York cannot charge a fee regarding a Workers' Compensation claim without getting the fee approved by a Workers' Compensation Law Judge). In cities like Rochester, the Workers' Compensation Board has become a central location around which many of the experienced lawyers on both sides have located their offices. Owners of for-profit corporations are exempt from workers compensation insurance however non-profit companies do not get the exclusion.

Privatization

In recent years, workers compensation programs in West Virginia and Nevada were successfully privatized, through mutualization, in part to resolve situations in which the programs in those states had significantly underfunded their liabilities. Only four states rely on entirely state-run programs for workers compensation: North Dakota, Ohio, Washington, and Wyoming. Many other states maintain state-run funds but also allow private insurance companies to insure employers and their employees, as well.

Alternate forms of statutory compensation in the United States

Employees of common carriers by rail have a statutory remedy under the Federal Employers' Liability Act, 45 U.S.C. sec. 51, which provides that a carrier "shall be liable" to an employee who is injured by the negligence of the employer. To enforce his compensation rights, the employee may file suit in United States district court or in a state court. The FELA remedy is based on tort principles of ordinary negligence and differs significantly from most state workers' compensation benefit schedules. Seafarers employed on United States vessels who are injured because of the owner's or the operator's negligence can sue their employers under the Jones Act, 46 U.S.C. App. 688., essentially a remedy very similar to the FELA one.

Opposition to statutory compensation in the United States

Opponents argue that workers' compensation laws may hurt the U.S. workers they were designed to help[citation needed]. Large employers may have an incentive to move segments of their business—and their jobs—to areas where workers' compensation benefits (and other employee protections) are less generous or are harder to obtain. This is because the United States lacks a unified and national set of employee entitlements covering minimum wagewage and hour, or collective bargaining rights in addition to compensation. Labor unions describe this system as a race to the bottom, as state legislatures cut employee entitlements to attract capital. Moreover, applying laws to citizens (or organisations) abroad, is an exception rather than the rule under common law. United States employers can also move some operations to other countries where employee entitlements are much lower than in the U.S., and where there may be no workers' compensation or other legal remedies at all for workers who are injured or who are exposed to hazardous substances while on the job. Such countries may also have weaker or no legal protections available for employees in areas such as job discriminationsocial security, or the right to organize or to join a trade union. Some small business owners complain that the cost of workers’ compensation, which they pay in the form of insurance premiums, places a heavy burden on them. Economists who favor the distributism system of economics cite workers' compensation as an example of how far the modern capitalist economic system approaches what they call the "servile state" or "slavery worker" system. They say that in past times, when ownership of the means of production were more widely distributed, it would not be natural to hold an employer responsible for a worker's injury, since the worker was freely choosing to work for that employer. Distributors assert that in modern times, with the vast majority of people dispossessed of the means of production, requiring employers to have workers compensation shows how much workers really are dependent on being employed and are essentially forced to work for someone else to survive. Some distributors who feel that capitalism is heading in the direction of a slavery system feel that this will come about by workers exchanging their personal freedom for economic benefits like workers' compensation.[citation needed]

Workers' compensation cost containment

Many things can be done to reduce the cost of workers' compensation. While many business owners and managers initially think "workers' compensation is the cost of doing business," this is not really true and there are many controls that can be put in place inside a company to make sure an employer pays only for legitimate injuries, from the time an employee is medically unable to return to anyproductive task at the workplace. This field of risk management is a specialized niche called "post loss cost containment," "injury management cost reduction," and several other names. The specialty centers around actions an employercan do to "manage" the processes in the workplace immediately after an injury occurs. There are four stages to the workers' compensation cost containment process including: assessment & recommendations, design & development, implementation and rollout.

Cost drivers

The areas generally considered to be key cost drivers are:
  • building management commitment,
  • working with the insurance company & insurance adjusters,
  • implementing an effective return to work & transitional duty program,
  • coordinating medical care,
  • medical cost management,
  • recognizing fraud and abuse,
  • self-interested defense counsel
  • improving communication with employees, and
  • training supervisors.
Employers should use a "holistic" approach to workers' compensation cost containment by looking at the total problem, rather than focusing only on one area such as reducing medical bills. By taking a "can do" approach, employers focus on controlling procedures within their control rather than the many things they cannot control. For example, employers cannot quickly or easily change the workers' compensation laws or eliminate plaintiff's lawyers or the legal system, items that are frequently mentioned as "causes" of high workers' compensation costs; however, an employer can implement a "post-injury response procedure" in their own workplace specifying what an employee must do if injured. Employers must "take charge" of those things within their control. Employers should also do after-action reviews (AARs) when an individual claimant's case has cost an extraordinary amount or resulted in extensive litigation to try and determine what went wrong. Often the biggest driver in costs is a failure to recognize a meritorious claim quickly. Delayed treatment can result in a need for much more extensive treatment and/or the futility of all efforts at healing and eventual return to competitive employment. An injured worker's sense of having been the victim of an unjust litigation process can also lead to increased rates of consequential depression and other mental health conditions which create a complicating "overlay" to an initial physical injury. In the United States, there has developed a relatively small industry of cost control consultants who review Workers' Compensation insurance premium charges for employers in order to find and correct overcharges caused by technical errors by insurers. These consultants are known as Workers Compensation Third Party Administrators. Part of their function typically is to review classification codes, payroll audits, and experience modification factor calculations. These consultants reduce Workers' Compensation costs by correcting errors in insurance premium calculations, rather than by reducing claims costs.

Policies

Having consistent policies and forms helps the employer remain in control of the process. Even very small companies should have a tight post-injury procedure to help management control the post-injury process. The overall goal is for 95% of injured employees to return to work within 1–4 days after the injury unless they are medically unable to perform any productive role for the employer. The time out of work should be proportionate to the length of the disability. The Average Cost Per Employee in 2009, according to the 2009 RIMS Benchmarking Survey is $721 for all employers combined. Some documents and policies to use are:
  • Transitional Duty Policy
  • Work Ability Form
  • Transitional Assignment Form
  • Post Injury Procedure
  • Worst-to-Best Benchmark Performance List
  • Employee Brochure
  • Introduction Letter to Employees
  • Employee Acknowledgement Form
  • Physician Telephone Contact Questionnaire
  • Supervisors Guide to Workers' Compensation
  • General Manager Best Practices

Further considerations

In general, statutory Workers' Compensation systems strike a compromise, guaranteeing workers medical care and payment for lost time on a no-fault basis. Before the enactment of Workers' Compensation laws, injured workers had to file suit against employers (usually for the tort of negligence), and such legal actions had significant drawbacks for workers. At the same time, a successful suit could impose very large and unpredictable costs on an employer. Statutory Workers' Compensation systems provide for prompt payment of medical, rehabilitation, and lost time costs to injured workers, while placing limits on the cost of the system for employers. This trade-off became known as the "workers' compensation bargain"; that is, the worker traded his/her right to bring a tort suit against their employer in exchange for prompt medical care and disability payments (indemnity payments). Thus workers compensation is the original "Tort reform". In many states today, Workers' Compensation represents a major cost of business for employers, and there is ongoing political maneuvering by both business and labor groups to shift the compromise balance struck by Workers' Compensation statutes (for an example see California's Senate Bill (SB) 899). In general, business groups seek to limit the cost of Workers' Compensation coverage, while labor groups seek to increase benefits paid to workers. Workers’ compensation in Texas remains generally elective meaning that most private sector employers can choose to subscribe to workers’ compensation or operate as a Texas nonsubscriber. Nonsubscription wasn't a major issue until the late 1980s when workers' compensation premiums escalated, on average, 150%. In response, businesses provided injury benefit plans to offer occupational injury benefits to employees as nonsubscribers.[20] For many employers, nonsubscription has been a choice that kept their operations in Texas and aided them in providing better care to their employees. The Texas Association of Business Organization believes that this critical workplace tool must be preserved. Over 40 percent of Texas businesses are nonsubscribers, who historically have had significantly greater satisfaction ratings and reduced expenses when compared to the workers’ compensation system.[16] For the commercial insurance market, Workers' Compensation represents a major line of business, although one that is sometimes problematic for the insurance industry. Premiums are large, but many insurers find it difficult to turn a profit in many states, as benefit costs sometimes exceed premiums. This line of insurance is regulated fairly closely by most states, although in recent years many states have allowed insurance companies greater flexibility in pricing this line of coverage. The hope has been that by encouraging price competition among insurers for Workers' Compensation insurance, employers would benefit by being able to obtain lower overall premiums. However, the introduction of competitive pricing for Workers' Compensation insurance has also led to significant swings in cost, as the insurance market moves between 'hard' and 'soft' markets. Employers often benefit from lower premiums in 'soft' insurance markets, only to see their premiums increase exponentially during 'hard' insurance markets.[21] Injured Workers sometimes complain that insurance companies do not treat them fairly or in compliance with the law, while employers often complain about their costs of insurance being driven up by exaggerated or fraudulent claims. Thus, the field engenders a considerable amount of controversy and litigation. These disputed areas include both claims and premium computations. The statute of limitations for filing a compensation claim for an accidental injury varies from state to state.

References

  1. ^ The Encyclopedia of Work-Related Illnesses, Injuries, and Health Issues
  2. ^ workcover.nsw.gov.au About Us
  3. ^ About WorkSafe Victoria – WorkSafe Victoria is the manager of Victoria's workplace safety system. Broadly, the responsibilities of WorkSafe are the following: * help avoid workplace injuries occurring * enforce Victoria's occupational health and safety laws * provide reasonably priced workplace injury insurance for employers * help injured workers back into the workforce * manage the workers' compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices.
  4. ^ What do WorkCover do? * safety and prevention including producing publications, education seminars * assisting business with an advisory service * accreditation of medical practitioners * ensuring that employers are insured * licensing of insurers * promotion of special events such as Safe Work Tasmania Week and the WorkCover Safety Awards
  5. ^ An Act for Insurance Against Accidents, July 6, 1884, translated and reprinted in F.W. Taussig, Workmen’s Insurance in Germany, 2 Q. J. ECON. 111 app. at 121-28 (1887)
  6. ^ US Dept. of Labor, The Job Safety Law of 1970: Its Passage Was Perilous
  7. ^ Holborn, Hajo: A History of Modern Germany — 1840–1945: Princeton University Press; 1969; pp. 291–93.
  8. ^ Munich Re - History of workers' compensation insurance in Germany
  9. ^ washburnlaw.edu, Compensation for Personal Injuries in a Comparative Perspective
  10. ^ HSE: Information about health and safety at work
  11. ^ wvu.edu
  12. ^ loislaw.com re: THE EMPLOYERS' LIABILITY CASES, 207 U.S. 463 (1908)
  13. ^ lawphil.net "The Employers' Liability Act of Alabama, first enacted in 1855 (Civil Code 1907, Ch. 80, sec. 3910), is a substantial, if not an exact copy, of the English Act of 1880."
  14. ^ The Federal Employers Liability Law of 1906 The 1906 law was declared unconstitutional by the Supreme Court; re-worked by Congress in 1908
  15. ^ eh.net FishbackIncludes extended data tables.
  16. a b Texas Association of Business Nonsubscription
  17. ^ Health Harbor - Health Harbor | Health Coverage - Using Your Insurance | Workers Compensation
  18. ^ See California Workers' Compensation Claims and Benefits, by Judge David W. O'Brien JudgeOBrien.com
  19. ^ See Ohio Rev. Code Section 4123.512.
  20. ^ Texas Association of Responsible Nonsubscribers (TXANS) FAQ concerning Nonsubscribing to Workers' Compensation in Texas
  21. ^ Ultimate Guide to Workers' Compensation Insurance, Edward J. Priz, Entrepreneur Press, 2005, p. 109
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