Tuesday, March 13, 2018

Is there a gender bias in workers’ compensation and OH&S?

Women represent about 47% of the employed labour force in United States and Australia, 48% of the employed labour force in Canada.   One might expect the hazards in the workplace to be similar for men and women and that is true for some risks.  Women working in construction doing the same work as men likely face similar risk of injury from falling objects, falls from elevations, lacerations, as well as pinch and “caught-in” injuries.   Many women working in construction are involved as flaggers where transportation/struck-by injuries more common. Women and men working as flaggers face the same hazards from drivers ignoring "cone zone" rules.

Even if women and men face identical hazards, the risk and rate of injury may differ. Variations in exposure, task selection/role assignment and even hours of work can influence published injury rates. 

There are, of course, other variations that change the risk and injury rate profiles for both men and women.  Equitable work for men and women often means different approaches that address the realities of difference between them and the context in which they work.  One OSHA paper [Advisory Committee on Construction Safety and Health (ACCSH). 1999. Women in the Construction Workplace: Providing Equitable Safety and Health Protection. U.S. Department of Labor. Available at: https://www.osha.gov/doc/accsh/haswicformal.html ] noted differences and health impacts of:
  • Workplace culture
  • Sanitary facilities
  • Personal protective equipment and clothing
  • Ergonomics
  • Reproductive hazards
  • Health and safety training

The differential impact of these issues on the health and safety of women and men may not be fully realized or acted upon.  Inspectors may only note the presence or absences of PPE and not the appropriateness of the range of sizes and fit available for workers.  The standard of sanitary facilities may not be high on the priority list for workplace safety and health officers but, as the study points out, the quality of what’s provided can have greater impact on women’s health.  In the era of “#metoo”, there may be greater awareness of sexual harassment on the worksite, but how many worksite inspections actually address workplace culture, training and enforcement?

These are not trivial issues.  These issues result in real harm to women, harm that may not always meet the traditional threshold for a workplace injury claim.  Psychological injury, bladder infections, ergonomic injuries are often the subject of greater adjudication scrutiny and contribute to a disproportionately high rate of denied workers’ compensation claims made by women.   The common experience of women having claims denied leads to a reluctance to even report harm let alone file claims.  This compounds the harm, perpetuates the problem, and hides the magnitude of gender bias in both prevention and workers’ compensation. 

Although the labour force is almost evenly split between males and females, the pattern of work is not exactly the same.  Women tend to be over-represented in work outside the 9 to 5, Monday to Friday work paradigm—and when most regulatory inspections and access to services take place.  Despite women experiencing a disproportionately high number of injuries on weekends and statutory holidays, there is little evidence that prevention inspections and services are equally available and allocated accordingly.

Inspectorates and prevention agencies need to assess their allocation of resources in just in ways that expose gender bias.  Metrics that show an equitable allocation of resources, access and activities to sectors dominated by women would be a start.  Anecdotally, the expectation of women and men expecting to see a workplace health and safety officer on their worksite is vastly different and begs the question, why. Measurement matters.

Measurement is the first step that leads to control and eventually to improvement.   If you can't measure something, you can't understand it. If you can't understand it, you can't control it. If you can't control it, you can't improve it.
- H. James Harrington (Author, columnist, a Fellow of the British Quality Control Organization and the American Society for Quality Control).  

Is there a systemic bias in the system?  It would not be the first time this question has been raised nor would it be surprising to find that workers’ compensation and occupational health & safety have similar inherent bias as shown in drug studies, ergonomic tables and other medical research. 
Some might argue that the risk, as evidenced by injury and claim rates, is higher for men.  The roughly 60/40 split in male/female time-loss injuries should support a similar distribution in prevention resources and efforts; fair argument, but I have seen no agency that reports efforts or activities on this metric.  Nor have I seen any reports of workplace inspectorates being evaluated through a gender lens. 

All workers deserve and receive equal protection through prevention and inspection services.   Saying our current workers’ compensation, prevention, and enforcement systems do that does not necessarily make it so.  It is time to take a hard look at what we are doing and not doing to achieve truly equal OH&S and workers’ compensation protection.

 Sometimes equality means treating people the same, despite their differences, and sometimes it means treating them as equals by accommodating their differences.- Judge Rosalie Abella, Report of the Commission on Equality in Employment, Canada

Thursday, February 15, 2018

How do you report unsafe work?

Suppose you are in a hotel and you see the window washer outside your room being blown around and unable to secure the platform.  Should you say something?  Would you?  And to whom? 

What if you stop for lunch on the weekend and the roofers on the steep slop of the mall across the street are three stories up and not tied off (and have no other fall restraint system in place)?    

What if your child comes home from his first week on a summer job concerned about the lack of personal protective equipment for the pesticides they are having to use but is fearful of losing the work by complaining?   

If you see an unsafe work situation at work, you have an obligation to say something.  Employers have a duty to keep workers and the workplace safe for workers and “other persons” in the workplace.  If you are a worker, you also have a right to refuse unsafe work.  But what if you are not a worker? What if the unsafe work or condition is something you observe but are fearful of reprisals if you intervene on your own? 

Most people would agree that you have a moral obligation to say something to prevent harm.  Most occupational safety and health and workers’ compensation authorities have information on their websites advising who to call or contact in the case of immanent danger to life or health.  For example, WorkSafeBC’s Prevention Information Line (see webpage https://www.worksafebc.com/en/contact-us/departments-and-services/health-safety-prevention ), states the following: 

Prevention Information LineContact us to:

  • Report a serious incident or major chemical release.
  • Report unsafe work conditions (see also Refusing unsafe work).
  • Report anonymously, in almost any language.
  • Request a worksite inspection consultation.
  • Get information about workplace health and safety.
  • Get information about the Occupational Health and Safety Regulation.
Phone: 604.276.3100 (Lower Mainland)
Toll-free: 1.888.621.7233 (1.888.621.SAFE) (Canada) Hours of operation: Monday to Friday, 8:05 a.m. to 4:30 p.m. Fatalities and serious injuries: Call the numbers above, 24 hours a day, 7 days a week.

Note how this organization removes the barrier of language and allows anonymous reporting.  There are, however, other barriers.  There is no facility to report by email or internet form, no facility to submit files, documents or photos, and, short of emergencies, access time is limited to normal daytime hours Monday to Friday.  Ideally, any person—worker or member of the general public—should  be able to report unsafe work without having to judge if it is an “immanent” danger.

In Washington State, the Department of Labor and Industries advises you fill out the following form: 

“Alleged Safety Or Health Hazards (DOSH Complaint Form)” Document number  F418-052-000 http://www.lni.wa.gov/Forms/wordforms/F418-052-000.doc

The website continues with instructions to “Mail, fax, or hand deliver a completed complaint form to any L&I office.”  It also advises “Your name & contact information (you may request anonymity or confidentiality for safety complaints).”  

This approach has some barriers.  First, not all of us have the time or inclination to download a document with about 20 fields,   (try and do that on your smartphone and I bet you will abandon the effort) . The form cannot be submitted as an email.  There is no provision for the form to be completed anonymously (although you can request anonymity and confidentiality).

Contrast this approach with taken by Alberta Labour.  You can “complain” about unsafe work using an online form.  Their website  (https://work.alberta.ca/occupational-health-safety/file-a-complaint.html )  states “Anyone can report unsafe conditions at a workplace; you don’t have to be employed by a business to do so.”  The web form has only a few mandatory fields and you can remain anonymous, although anonymity, of course, means officials can’t contact you for follow-up details or additional information. 

The Workers’ Safety and Compensation Commission (WSCC of the Northwest Territories and Nunavut) has a similar online form but has the added “search and view” feature.  The screen shot shows the detail available using this function.  It allows anyone to follow up on what is being reported and what happened as a result of a report.  The report is sortable on multiple fields. 

I particularly like this level of transparency.  While individual firms and persons are protected, it raises the profile of health and safety.  It also increases the perception that unsafe work will be detected and reported.  For some organizations this increased risk may act as a deterrent to unsafe or unhealthy workplaces. I’m not suggesting OH&S inspection should be crowd sourced, but allowing and encouraging public participation in making workplaces safe and healthy has the added advantage of raising societal awareness on this important issue.  

Some systems say the don’t respond to anonymous sources.  Note this line from the Yukon Workers’ Compensation Board’s website (https://wcb.yk.ca/QuestionResults/OHS/Reporting/Q0228.aspx ):
When you report a dangerous workplace, you will be required to give your name and contact information for follow-up. Our safety officers do not respond to anonymous complaints.
This barrier may discourage anyone from “getting involved” and the rationale for this exclusion is not explained.

One of the best online forms I’ve seen for reporting unsafe work comes from the Australian Capital Territory.  The Access Canberra webpage (https://www.accesscanberra.act.gov.au/app/forms/worksafe_report )  has a simple form complete with the ability to upload documents or files and includes an interactive map to pinpoint the closest physical location of the concern.   Think about the investigative value of uploading photos that are geotagged and timestamps.  It also has a tick box to “submit anonymously”.   The mobile version of this page is just as good and works well on a smartphone.

The purpose of reporting an unsafe workplace is prevention.  Barriers to reporting defeat this purpose.  Reporting unsafe workplaces and situations should be simple, quick and  as barrier free as possible.  My checklist for a good “report unsafe work” site includes:
  • Accessible (multi-lingual if possible)
  • Available 24 hours a day, 7 days per week
  • Open to reports from the general public
  • Allows anonymous submissions
  • Permits attachments (documents, photos, etc.)
  • Simple and quick to submit from a smartphone
  • Provides a tracking reference to the submitter
  • Provides a transparent process for showing recent submissions and actions

Its time workers’ compensation and Occupational Health and Safety  organizations begin to leverage the power of instant communications and encourages greater public participation in making workplaces as safe and healthy as possible. 

Wednesday, January 3, 2018

What accounts for the close similarity between some workers’ compensation systems?

Over the last several years, I have been looking early workers’ compensation systems in North America.  The striking surge in workers’ compensation legislation among US states and Canadian provinces in the early decades of the twentieth century is evidence of a societal change that transcended party politics and established social convention. 

There is some debate as to which state or province had the first true workers’ compensation system.  Some cite Wisconsin as the first US “constitutional” workers’ compensation system to come into force.  In Canada, many point to Ontario while others, including Arthur Larson, cite British Columbia’s 1903 legislation as the first on this continent.

The first true compensation act adopted not only in Canada, but in North America and indeed the entire New World, was enacted in British Columbia on June 21, 1902 [Effective May 1, 1903]”Arthur Larson “Workers’ Compensation Reform – The Canadian Example”, Meredith Memorial  Lecture, 1987.

One confusion over which jurisdiction ranks first to have a workers’ compensation system depends on what you consider the starting date of the legislation.  You will note there is usually a gap between the passage of legislation and the effective date on which the first claim might be accepted.  This period is necessary to give life to the legislation.  Administrative bodies have to be created, administrators hired, office acquired, employers identified/enrolled (classified, assessed premiums, etc.), forms designed, systems established, and so on. 

Legislators then as now could “borrow” concepts and even copy wording from other jurisdictions.  You can see this when you look at early versions of legislation.  The identical wording of some sections of legislation may be found in states or provinces on opposite sides of the continent.  It stands to reason that forms to report injuries and start claims will ask similar questions; after all, the “who, what, where, when” questions are necessary regardless of the underlying legislation. What struck me as I looked back at the beginnings of workers’ compensation was the striking similarity in administrative structures and even forms between independent jurisdictions.  I still have no explicit answer that concretely  accounts for the similarities (including features such as design, questions asked, form numbers and colouring)  between “report of injury”  forms used in widely separated jurisdictions.  The obvious answer is that the administrative structures and processes were copied, however, there is no obvious answer as to how exactly that worked in most jurisdictions. 

Part of the answer may arise from the work of people like Frank Webster Hinsdale.  Hinsdale was born in New York in 1862 and died in Vancouver in 1932 but moved around a lot between those years.  I found clippings from Washington state describing him as an entrepreneur, living in Washington and buying coal properties in British Columbia in 1909. In 1910 he was with the Olympic National Bank and then is reported as working for the Washington State Industrial Insurance Commission.  That state was just setting up its workers’ compensation system and it appears Hinsdale traveled much of the state, explaining to business and others how the system would work.  In 1911, he assumed the position of Chief Auditor for the Industrial Insurance Commission. 

The next record I could find of Hinsdale’s work was his testimony to the Ontario Royal Commission on Workmen’s Compensation in January 1913.   The minutes of his evidence before Sir William Meredith provide insight into the thinking behind workers’ compensation in Washington State.  Meredith was interested not just in the words that framed the legislation, but the processes and how things actually worked. Hinsdale provided his insight and the rationale behind certain practices. 

At one point in the testimony, Hinsdale is asked to comment on a common criticism of workers’ compensation, the idea that insurance pooled risk removes employer incentives towards safety.  Hinsdale responded: 

I cannot imagine why an employer who finds that his rate is increasing, or who is confronted with a demand for a contribution to the fund would not say to himself, ‘what causes all these accidents?’ I cannot imagine why he should not immediately want to install every safety device possible, and after he has installed them in his own place, I should think that he would require them to be installed in every other place.Meredith, Minutes of Evidence, Vol. 2: 286

By the end of 1913, Hinsdale was hired away from Washington to head up Oregon State’s implementation of workers’ compensation.  Skip ahead to 1916, and Hinsdale appears in British Columbia.  That province passed its new Workmen’s Compensation Act on May 26 1916 with an implementation date of January 1, 1917.  A newspaper report from July 2016 picks up the story:

WORKMEN S COMPENSATION EXPERT MR. FRANK W. HINSDALE, who, as Premier Bowser announced at Phoenix, has been engaged by the government to inaugurate the system under the new Workmen's Compensation Act, is said to be one of the greatest authorities on the continent on the administration of such legislation. He inaugurated the Washington administrative system as chief auditor and then did the same for Oregon.  He later inaugurated [the Ontario] system and then went to Halifax, where the Nova Scotia government has just brought a new act into force.
July 25, 1916 Vancouver Daily World from Vancouver, · Page 8

Hinsdale got right to work and the newspaper reports of the day quote him outlining his work:

...[O]n the day when the 'Workmen's Compensation Act' comes into force the whole machinery for the administration of the act must be moving……The mere enumeration of the names and addresses of these employers, with notes showing the nature and proper classification of their industries, or of the branch or departments of their business which would be within the scope of the act, is a work of considerable magnitude.
- Frank W. Hinsdale  (as quoted in The  Daily Colonist, Victoria, BC Sept 3, 1916 p. 3)

That term, “the machinery for the administration” of the workers’ compensation system reflects the thinking of the industrial age and the practicality of translating legislative action into workable processes.   I have no direct evidence that Hinsdale personally accounts for the many similarities one finds between across the jurisdictions he touched, but it seems likely that he and others like him account for many of the similarities we find that were there in the beginning and persist to the present day.             

Hinsdale stayed on in BC as Secretary to the Board.  The last reference I could find to his work was a note in the 1931 Annual Report which reports that notes “the late Actuary, Frank W. Hinsdale, F.C.A.S.” certified the financial actuarial evaluations to December 31, 1931. 

It is often said that workers’ compensation jurisdictions can learn from each other.  While true in principle and easy to say, no workers’ compensation system can learn anything from any other system without people like Frank W. Hinsdale facilitating that learning, sharing knowledge and passing on experiences.

Thanks, Frank. 

[Access to the documents cited above was provided by the Librarian, Secretary of State, Washington and the Librarian and library staff at WorkSafeBC, which also funded some some research into its early history].

[Note:  I would welcome more information on the setting up of workers' compensation systems after legislation and before implementation as well as copies of the first forms used in your jurisdiction]. 

Tuesday, May 23, 2017

Who is NOT covered by Workers' Compensation?

For the last few months I have been researching the public policy criteria for determining who is  covered by workers’ compensation and who is not.  From a public policy perspective, an accurate statement of "percentage of the employed labour force covered by workers' compensation" is an important foundational statistic to any public policy evaluation or reform.  Some data do exist but, so far, it appears:

  • Stated workers’ compensation coverage rates are likely over-estimated
  • Few jurisdictions provide actual counts (or direct, well documented estimates) of workers mandatorily covered
  • No jurisdiction publishes counts of those who voluntarily “opt in” to coverage
  • No jurisdiction publishes counts of persons (as opposed to the number of waivers issued) exempted by waivers, elections, or opt-out provisions
  • Public policy justifications for exclusions or exemptions are almost non-existent
  • Where justifications are offered, they primarily rest on the historical evolution of workers' compensation coverage

While there are some published coverage estimates based on workers’ compensation data regarding the numbers of workers covered, most do not explain their methodology.  Many rely on external data sources (unemployment insurance data, employment surveys).  

Even the wording surrounding coverage in workers’ compensation is not consistent.  In some cases, certain industries, occupations, worker categories, or employers are “exempted”, others “excluded”, and still others may “seek a waiver” from the otherwise universal or sectoral coverage rules.  Often, there are rules that allow some exempted or excluded categories to apply for coverage on an optional or “elective” basis.  Rarely, however, are detailed estimates of number or proportions of the work force within and beyond coverage provided at the state or provincial level.    

The inconsistencies in workers’ compensation coverage rules have real-life implications for those in the scope of coverage and outside it.  The lack of consistency in coverage rules may lead to erroneous assumptions that can leave workers and their families destitute and employers without the protection of the workers’ compensation exclusive remedy.  Worse yet, the lack of workers’ compensation coverage externalizes health care costs of work-related injuries to other medical plans (private and public) thus raising costs for the funders (including taxpayers as well as individual and group disability insurance plans). 

Workers’ compensation premiums are often justified as a means of confining the financial costs of work-related injury, illness and disease to the industry that gives rise to them; if workers’ compensation costs rise, there is an incentive to greater investment in safety and prevention.  For workers and employers outside the workers’ compensation scope of coverage, those incentives may be less clear and far less direct.  More importantly, those financial costs for wage replacement and medical aid (diagnostics, treatment, rehabilitation) are externalized to others.  If someone else bears the financial cost of work-related injury, why bother invest in prevention?

I’ve asked several government policy branches responsible for health and workers’ compensation to provide their public policy rationale for limiting the scope of workers’ compensation coverage.  The few formal responses I have received so far are like this one (I won’t name the jurisdiction):

“Many of the [excluded] industries listed…  were deemed ‘low risk’ while others actively lobbied to be exempt from coverage.”

“Low risk” is not defined and “active lobbying” implies that those with good lobbyists are the only ones likely to be excluded. 

In my research so far, I have examined about 70 jurisdictions in Canada, the U.S. and Australia.  The public policy approaches for determining who is and who is not in the scope of coverage fall into the following general categories of workers’ compensation coverage:

  • Optional inclusion (Texas, for example)
There are three public policy approaches to those excluded from coverage:
  • Hard exclusion:  NO option to come under coverage for any reason
  • Soft exclusion (Voluntary inclusion):   Option for exempted or excluded to “opt in” or enter voluntarily into workers’ compensation coverage
  • Waiver exclusion:  Ability to “opt out” of coverage if certain conditions are met
The following list provides some of the occupations and industries that may be excluded from workers’ compensation coverage (NOTE: Many of those occupations/industries in this list are in fact mandatorily covered in some or most jurisdictions).  The list is not comprehensive nor is it universal.  The jurisdictions mentioned are illustrative only; others may or may not have similar (or more or less restrictive) provisions for a given occupation or industry.  This listing is provided here to illustrate the range of exclusions and the variability in the criteria among various jurisdictions:

Agricultural / farm workers /harvest help/Gardeners – Exempt if 5 or fewer in Florida, if family farm and less than  $8k payroll in Minnesota

Babysitters and Child Care -  Child care before or after school of less than 15 hours per week is optional in British Columbia but mandatory if more than 15 hours per week.       

Cab / vehicle for hire drivers – Independent taxi drivers exempt in Massachusetts. Taxicab drivers whose compensation is by contractual arrangement are exempt in Alaska

Casual employees  - Exempt if less than 26 hours weekly in Connecticut,  if less than 20 consecutive days in Kentucky

Cleaning persons/ Private household workers-  Household or domestic employees whose typical duties include house cleaning and yard work are exempt in Montana. Exempt if less than 20 hrs/week and 6 less than 6 weeks in any 13 week period in South Dakota.

Commission-paid salespersons—This is often listed as a separate category from real estate and insurance commissioned sales but criteria vary.                 

Corporate Officers/Exec Officers / Directors /Major Shareholders – Exemption formulas vary widely.  Elective for up to 10 shareholders with 10% or more of shares in Michigan, 5% ownership in Pennsylvania, 25% share ownership in Nebraska           

Cosmetologists, Barbers- exempt in Montana

Domestic servants – Exemptions from coverage if less than 52 hours in  90 days in California, under 240 hours per quarter in DC, if less than $160 by 1 employer in any 3-month period in Ohio

Entertainers – Musicians exempt pursuant to a service contract in Louisiana, Entertainers in Nevada are exempt.       

Family Farm corporations/ Family enterprises—often listed as optional or elective but coverage may be required for farm hands if a specified number of employees or payroll value is exceeded   

Financial Institutions (Banks)- Banking is exempt from coverage in Manitoba, Ontario, Alberta            

Illegal enterprises or occupations—This is not often specified but may turn on the definition of “illegal”.  Specifically excluded in South Dakota

Independent Contractors-  Often excluded but specific rules may apply for construction; special certification may be requires for exemption as in Montana 

"Less than" exemptions  - Exempt for firms with less than a stated number of employees; 3 in Michigan, 4 in South Carolina, 5 in Missouri. [ NOTE:  Special rules may apply for construction firms]

Maritime workers- Exempt in New Jersey        

Municipal employees – Exempt for firefighters and police cities <500k illinois="" in="" span="">

Newspaper/publication vendors/ distributors—This is a controversial area particularly in Kentucky where a recent law requiring mandatory coverage was overturned             

Non-profit, religious, charitable organizations – This is a common category but there are specific criteria in most jurisdictions     

Outworkers - Exempt if less than 26 hours weekly in  Connecticut.

Owner operators – Truck driver owner operators are exempt in South Carolina.  Exempt in South Dakota if certified as Independent Operators by the Department of Labor.   

Professional sport players / athletes – Exempt in Florida, hockey teams exempt in Rhode Island, Professional sports competitors or athletes are exempt in British Columbia (note, however, managers , coaches, administrators are mandatorily covered).

Real estate agents/licensees/ brokers (commission) and Insurance Agents- licensed- commonly exempted from coverage. 

Sawmill or logging operators - Exempt if  >10 employees who operate less than 60 days over a 6 month period in North Carolina

Self-employed/ Independent Contractor - Very common exclusion but often with optional or voluntary inclusions offered.

Sole proprietorship or partnership (Sole trader in Australia)  - Exempt in most places but in Tennessee, in construction, sole proprietors and partners are required to cover themselves or be listed on the State Exemption Registry

State / provincial employees    - Voluntary for state and political subdivisions in Tennessee, exempt for elected or appointed officials in South Carolina

Teachers – Most teachers in Alberta and Saskatchewan are exempt.    

Volunteer first responders, law enforcement, patrol members or rescue workers  -specifically covered in Minnesota but certain groups like ski patrol persons exempt in North Carolina. 

There are also groups of individuals that may be excluded from some or all coverage under workers’ compensation.  Undocumented workers have been denied coverage for vocational rehabilitation, for example, because of their illegal immigration status  (Ortiz v. Cement Prod., Inc., 708 N.W.2d 610 (Neb. 2005)).  Workers in concurrent employment may have limited coverage (see http://workerscompperspectives.blogspot.ca/2015/06/will-workers-compensation-cover-income.html and "Moonlighters Wanted", Perspectives Magazine, IAIABC, November 2016 ).

Beyond the problems for workers and employers associated with the lack of coverage for certain industries and occupations, the absence of concise, comparative numeric data leaves policy makers to make important decisions on shaky assumptions.  Finding an accurate answer to the question "What percentage of the employed labour force covered by workers' compensation?"  should not depend entirely on indirect calculations.  "Employment" and "employed labour force" are frequently sampled and reported, so choosing a recognized denominator should be straightforward.  In states like New Mexico or Oregon with direct worker premiums or per capita payroll charges for workers' compensation, calculating the numerator should be trivial.  Unfortunately most jurisdictions only collect payroll not employment data so no direct numerator data is available to them.  

In the interests of good public policy and transparency, jurisdictional reporting of the percentage of the employed labour force covered and not covered by workers' compensation should be improved and standardized.  At a minimum, each jurisdiction should be report the number and percentage of employed labour force covered, the number of firms and associated workers covered by "opt in" or voluntary coverage provisions, and the number of firms and associated workers exempted or excluded by waiver or other application process.  

Saturday, March 4, 2017

Are Waiting Periods for TTD compensation universal in workers’ compensation?

Despite having addressed waiting and retroactive periods before, I continue to receive questions about the law and policy surrounding them.  The questions usually contain assumptions that waiting and retroactive periods are universal features of workers' compensation systems and their design is uniform.  Neither assumption is true.  Understanding the variation in waiting and retroactive periods is critical to interjurisdictional comparison, policy analysis and financial risk planning for employers and workers. It is also essential in any comparative exercise on the costs and benefits of workers' compensation systems.  

Waiting periods are not a universal feature of workers’ compensation for temporary total disability (TTD).  While common in US states, waiting periods for TTD compensation are absent from most Canadian workers’ comp and  Australian “WorkCover” jurisdictions.   Where waiting periods are part of the workers’ compensation legislation, they are far from uniform in design. 

A waiting period for TTD workers’ compensation is a specified time frame following a work-related injury for which TTD compensation is not payable.  A few jurisdictions provide exceptions to the waiting period rule in the case of hospitalization (California, Idaho for example) or for certain professions (firefighters in Maine and New Brunswick). 

Closely aligned with waiting periods are retroactive periods.  If there is a waiting period, legislation usually contains a retroactive provision allowing for TTD compensation to be extended to the waiting period if the duration of disability extends beyond a specified period (7 days in Delaware, 6 weeks in Louisiana, for example) .  Some jurisdictions (Rhode Island and Hawaii, for example) have no retroactive period regardless of the duration of TTD. Where there is no retroactive period or where the duration of disability is less than the retroactive period, the injured worker receives no TTD compensation to offset the lost wages.

An uncompensated waiting period is a worker-paid “deductible”.  From the perspective of the worker, the full value of earnings lost during the waiting period represents a financial cost to the worker in addition to the human cost associated with work-related injury.  A waiting period that is waived or paid retroactively  reduces the financial burden of lost earnings but does not make the workers “whole” with respect to lost earnings.  Earning replacement rates and maximum insurable earnings or maximum benefit payments still apply and virtually guarantee that a portion of lost earnings are never recovered through workers’ compensation insurance. 

There is no universal standard for what constitutes an equitable waiting period.  The 1972 report of the National Commission on State Workmen’s Compensation Laws headed by John F Burton, Jr., noted the pressures for reducing and maintaining waiting periods:

The advantage of reducing both the waiting and the qualifying period [for retroactive benefits] is that workers will have a higher proportion of their lost remuneration replaced by benefits. At the same time, the cost of the program increases, both in benefits paid and in administrative expenses. Proponents of the waiting period argue also that a waiting period is necessary to discourage malingering. (Chapter 3 page 59)

The National Commission’s mandate required an evaluation of various aspects of permanent and temporary compensation under state workers’ compensation laws with respect to adequacy and equity.  Its recommendation regarding waiting and retroactive periods provides guidance to policy makers in the US and beyond.  The National Commission summarized its recommendation this way: 

We recommend that the waiting period for benefits be no more than three days and that a period of no more than 14 days be required to qualify for retroactive benefits for days lost.(Ibid.)
The National Commission’s recommendation defines a reasonable “minimum standard”  or threshold  against which policy makers and stakeholders may examine workers’ compensation waiting and retroactive periods.  Using this “no more than” standard, each workers’ compensation jurisdiction may be assigned to one of  three distinct categories of compliance with National Commission’s  recommendation:   Exceeds, Meets, and Fails to meet the minimum recommended by the National Commission.

In February 2017, I retrieved statutes and/or policy documents regarding waiting and retroactive periods for all North American jurisdictions.  I then categorized each according to its compliance with  the National Commission recommendation. [As an aside, most statutes contain no reference to a “waiting period”.  The provisions that give rise to waiting periods are often framed as prohibitions against payment for losses in the initial days following injury or prescribed timeframes for the “commencement” of temporary total disability compensation payments.]   The preliminary results of my analysis are as follows:

  • Exceeds Minimum recommendation:
    • No waiting period or
    • Waiting period of three days and/or retroactive period of less than 14 days or
    • Waiting period less than three days and retroactive period of 14 days or less
      • Wyoming, Wisconsin, West Virginia, Minnesota, Vermont, Connecticut, Delaware, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Prince Edward Island, Newfoundland & Labrador, Northwest Territories, Nunavut, Yukon

  • Meets Minimum: 
    • Waiting period of 3 days and retroactive period of 14 days
      • Washington, Oregon, Utah, Colorado, Iowa, Montana, Illinois, Kentucky, District of Columbia, Maryland,  New Hampshire

  • Fails to meet recommendation: 
    • Waiting period of more than 3 days or
    • Waiting period of any length and no retroactive period or
    • Waiting period of any length and retroactive period of greater than 14 days
      • California, Nevada, Idaho, Montana, Arizona, New Mexico, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Arkansas, Texas,  Louisiana, Mississippi, Alabama, Georgia, Florida, Tennessee, North Carolina, South Carolina, Virginia, Indiana, Ohio, Pennsylvania, Indiana, Ohio, Michigan, New Jersey, New York, Rhode Island, Massachusetts, Maine, New Brunswick, Nova Scotia

More than half of the North American workers’ compensation systems examined in this analysis fail to meet the minimum waiting period and retroactive period recommendation of the National Commission. 

This wide disparity across systems creates inequalities in the financial burden for workers.  It also complicates comparisons of employer costs for workers’ compensation.   Rate comparisons rarely take into account the financial impact of the variation due to system features such as waiting and retroactive periods.  Clearly, the value provided by  workers’ compensation coverage  with no waiting periods (or a short waiting and retroactive periods) should be taken into account when comparing rates and costs to jurisdictions with lengthy waiting periods (and particularly if they  have lengthy or absent retroactive periods).   That said, I can find no published figures or estimates of the uncompensated wage loss due to waiting periods in any state with a waiting period.  There are estimates of the value of “employer deductibles” but worker deductibles in either dollar amounts or uncompensated time (days or weeks) are not reported.

The laws and policies around the commencement of TTD compensation impact every workers' compensation time-loss claim.  More than any other comparative feature, the policies regarding waiting periods and retroactive periods influence the balance of who bears the cost of the most common workplace injuries.  Workers bear the physical and financial costs of those injuries; the portion uncompensated by workers' compensation systems can vary widely with devastating consequences on families and the potential externalization of costs to other insurers, workers, and the community at large.  These externalizations obscure the full cost of work-related injuries--and amount to a subsidy to the cost of production that removes or dilutes incentives toward prevention of injury and disability.  

Where waiting periods have been eliminated, the uncompensated portion of lost earnings is reduced and may be inferred by the reported value of compensation for TTD paid.  Where waiting periods exist, the uncompensated portion of lost earnings will be significantly higher than for otherwise similar injuries and system features. Quantifying the impact may influence safety and outcomes for millions of workers.  

Thursday, January 12, 2017

What emerging issues in workers’ compensation and OH&S are on your watch list?

I’m often asked about emerging issues in workers’ compensation and occupational health and safety.  Each perspective in this field may see a different issue or trend as important.   There are, however, some overarching issues that will have significant implications for legislators, advocates, and practitioners as well as workers and employers.  In no particular order, here are some of those issues my watch list.

For Administrators and Legislators (and workers, too!):  The "Gig" economy cometh! 
Drive for Uber,  develop an app, open a YouTube Channel… the list of “gig” jobs has moved far beyond the context of one-time or short-term jobs that musicians, artists, and performers (and conference speakers) found employment.  Tech specialists, construction workers, delivery drivers, and many jobs we used to think of as regular full or part-time employment are being deconstructed and recast as "gigs"-- task oriented, contingent, and demand-driven.  What used to be considered “moonlighting” jobs or other forms of concurrent employment are now part of this growing gig economy. 

From many regulatory viewpoints, gig workers are considered freelancers or contractors rather than employees. Uber, for example, considers itself a technology company rather than a transportation firm; the drivers it connects customers with are not employees but rather independent contractors.  The term “Uberization”  [or “uberisation”] now appears in daily newspapers, business magazines and academic journals [see examples: Carney, Brian M., “Let’s Uberize the Entire Economy”, Forbes (on line), Oct. 27, 2014 and  Davis, Gerald F “WhatMight Replace the Modern Corporation? Uberization and the Web Page Enterprise,”Seattle University Law Review, Vol.39: 501-514] .

After decades of decline in concurrent employment, multiple job-holding is on the rise—and not just among younger workers.  About 6% of the employed labour force now holds multiple jobs with prevalence in the under 25 groups, women, and specific occupations (firefighters, school teachers) reaching nearly 30%.  “Side gigs” are becoming common in many families.  The consequence of a work injury in one job may means a loss of earnings from all income-producing activities. The physical and mental costs of the work-related injury may be the same but compensation for the financial loss coverage may fall partly or completely outside the workers' compensation coverage.

How should gig workers be covered from a workers’ compensation perspective… or should their employment be excluded from coverage?  What about their loss of earnings from gig employment in the event of a “workers’ comp covered” work injury?  Are gig workers covered by occupational health and safety regulations?  Who tracks injuries, fatalities and near misses to gig-economy workers or do we simply ignore what is happening in this growing segment of the economy?

These are tough questions for policy makers.  Individuals who take on “gigs” may not fully realize the restrictions many jurisdictions place on concurrent employment in deciding coverage under workers’ compensation rules. Is enough being done to adequately inform and educate potential and current gig workers about the financial and safety risks?  Do we have the data to even calculate the risk for gig workers? [Risk is a multifactor assessment that includes intrinsic issues such as hours of work/rest/sleep (fatigue) and extrinsic issues (road/traffic conditions, equipment conditions)]

Do current employment surveys adequately capture gig-economy employment?  Will gig economy jobs become ghettos of unsafe or higher risk work?  To what extent, if any, does concurrent work in the gig economy erode (or enhance?) the health and safety of its participants (and others in the workplace)?  Do uberized organizations have any responsibilities for the health, safety or workers’ compensation of the “agents” or “contractors” they engage? 

For Vocational Rehabilitation and Disability Management Professionals:  Disruptive technologies are changing Return-to-work options

Uber may be the poster child for the gig economy but it is also the consequence of a disruptive technology.  The technologies behind what we think of as the mobile internet coupled with the growing connectedness of everything (including what is often termed the “internet of things”) changes everything. These technologies together are transforming what people do and just as importantly what people will be doing less of in the future.  Consider the following:

·         Autonomous (driverless) vehicles are going to further disrupt the ride-for-hire sector. 
·         Transport (long haul, pin to pin, land train) driving occupations will decline rapidly.
·         Robots and drones are eliminating many positions in the supply chain including home delivery.
·         Bricks and mortar convenience stores that require no retail sales staff now exist.  

New technology changes and replaces occupations in more than transportation and retail.  Fewer production workers are needed as robotics take on increasingly complex roles in manufacturing at an hourly cost equivalent of between $4 and $8 per hour (see BCG,  “Takeoff in Robotics Will Power the Next Productivity Surge in Manufacturing” February 10, 2015).

Even experts in highly technical fields are in peril of being replaced by “artificial intelligence”.   IBM’s Watson not only beat out humans on Jeopardy; Watson now powers weather forecasts and diagnosis medical conditions.  “Watson is now incorporated into about 17 different industries and IBM is working with more than 500 partners to build Watson cognitive applications, including retail, law, music, image recognition, the hotel business, and even cooking.” [Young, Lauren J., “What Has IBM Watson Been Up to Since Winning 'Jeopardy!' 5 Years Ago?” Inverse.com, April 5, 2016]

All these changes mean workers seeking a return to work following an injury are going to have fewer RTW options.  But for the injury, many workers would have been able to continue or at least compete for the shrinking jobs in a sector being disrupted by technology.  The RTW challenges will be similar to those experienced in “sunset” industries but there are other issues. If previously placed workers with accommodated impairments are displaced by new technologies, what are the employer responsibilities to further accommodate or the workers’ compensation system to further compensate? 

Disruptive technologies may increase opportunities for highly specialized and trained individuals and perhaps some lower skilled occupations stripped of complexity but too expensive to automate.  This hollowing out of the mid-range jobs will increase the return to work challenge. 

Mandatory reinstatement laws are likely to become meaningless if the sector is declining because of new technologies.   Making reinstatement to a higher paid position is already a tough sell.  As more and more workers with residual disabilities occupy positions at their highest capability at a work equal to or lower than their at-injury positions, each subsequent placement will become a greater hardship.  In industries feeling the impact of disruptive technologies, the undue hardship threshold will be reached sooner than later.  What happens then?  What happens to the accommodated workers as their jobs are displaced?  Should the residual permanent disability increase caused by the changing environment trigger a re-assessment and further services? Ought gig-economy jobs be considered “suitable and available” work alternatives when assessing loss of earning potential related to work injuries?  Disability management and vocational rehabilitation professionals may need new policy tools to prevent disability and be effective in this environment.  There are cost implications for employers and workers to action as well as inaction on these questions.  

Reputation managers and administrators:  Social Network and News Nightmares (information everywhere, but…)

Try this little experiment.  Select a topic you in which you have absolutely no interest.  Perhaps Big Foot sightings , UFO news, or the “debate” over global warming.  Use your smartphone to search a couple of websites or your news app to track a few stories.   No big deal, right?  Within a few days, you may notice your news feed or social media begins feeding you news based on this new “interest”. 

Why is this a problem?  Social media and many news search services will use your past searches to send you stories that have the effect of not only reinforcing your views but reinforcing any view that coincides with even a passing interest.  If you start searching stories on how poor workers’ compensation systems are, you will begin receiving more and more stories that reinforce this view.

The reputation of a workers’ compensation system is damaged by a thousand negative stories shared just once or twice; it is just as vulnerable to a single negative story shared a thousand times.  The self-reinforcing nature of current social networks and news services are making this scenario more common.  Even if the original story is speculative, inaccurate, one-sided or plainly “fake news”, it undermines reputation of the workers’ compensation system.[Example and background, see  Feldman, Lauren;  Teresa A. Myers, Jay D. Hmielowski, and Anthony Leiserowitz   “The Mutual Reinforcement of Media Selectivity and Effects: Testing the Reinforcing Spirals Framework in the Context of Global Warming”  Journal of Communication Vol 64: 590–611].

Why is this so important?  Public confidence in the workers’ compensation and occupational safety and health systems are critical to their mandate.  Eroded reputation based on spurious accounts of wrongdoing discredit important information on safety, health, and rights to compensation leading to under-reporting of hazards, suppression of work-injuries, and increased barriers to entitlements.   

More critically, the resulting loss of information regarding workplace injury and its costs may lead to inaccurate risk assessment and underinvestment in prevention.   This raises the potential of harm to workers and other persons in the workplace.

To be clear, reputation is not just a public or worker matter nor is it only a concern for state funds, provincial workers’ compensation boards, or OH&S inspectorates.  All players in the system need to be concerned about their own reputations and that of the overall workers’ compensation system in their jurisdiction and beyond.  Employer or provider complaints can be just as damaging.  As we have seen in other domains, if you can’t rapidly resolve complaints, counter misinformation with fact, and demonstrate performance with authority (research, external reviews) then the reputational impact will be severe.  Not only will detractors be energize but supporters will fall silent and the ambivalent may shift support to any alternative even if it is unproven.

Current privacy and political restrictions often restrict responses to criticism.  A workers' compensation insurer may be unable to respond about a particular case because of privacy laws meant to protect the worker and his or her family.  State funds may be precluded from advertizing prior to an election or even informing a debate on performance with new data.

Protecting and improving system reputation is becoming more difficult. Poorly operating systems are going to have poor reputations—they earn and deserve that; however, even systems that objectively rank among the highest for customer service, public contribution, value and timeliness will find reputation management an increasingly difficult challenge.  Averting erosion of hard-earned social capital means workers’ compensation systems must actively provide evidence of excellent of performance, demonstrate transparency, and actively respond to fake news and inaccurate reporting.    
For the inspectorates, prevention specialists and regulators:  Demographics!

Look around at your labour force.  What you undoubtedly will see is a labour force that looks a lot different than it did a decade or so ago.  In most cases, you will see older workers and greater diversity than you did just a few years ago.  Tasks that were designed for the safety and health of twenty year olds may put older workers at risk.  Job tasks including safety parameters for repetitions, weight limits and durations may not take into account the variability of age and gender represented by today’s workforce. 

The Center for Retirement Research at Boston College recently created a “Vulnerability Index” ranking nearly 1000 jobs for their susceptibility to age-related decline in skills.  The ranking lists jobs from least vulnerable (good news for compensation and benefit managers, teachers, and law clerks) to most vulnerable (bad news for roofers, fallers and plasterers).   [See Vulnerability Index April 2016].  Note that the restrictions, comorbidities and physical changes that contribute to increased vulnerability are very similar to the permanent impairments arising from work-related injuries.                
The consequences of demographic change extend beyond the growing numbers of older workers.  Falling birthrates mean lower numbers of younger workers, more immigrants, and more temporary foreign workers.  These shifts introduce different perspectives and knowledge based to the workplace.  They can create cultural and intergenerational tensions that can lead to greater risk taking or pressure to hide or self suppress risk or injury reporting.

In Canada, the US and Australia, older workers are among the fastest growing segment of the labour force.  Working longer may actually be good for health and wellbeing for many individuals but there are different risks, increased susceptibilities and the impact of prolonged exposure to take into account.  And that’s the problem.  Few organizations are taking the demographics of their workforce into account.  On a case by case basis, there may be procedures or tactics to address individual cases.   What is lacking is an overall strategic approach to track and project demographic factors and consequences.  Changing demographics require new strategies as well as appropriate safeguards, polices and assessments to prevent injuries and exposures. 

Another for us to think about:  Big Data, Predictive analytics and Occupational injury, illness and disease 

Workers’ compensation systems evolved from physical, traumatic injury insurance models.  Single events lead to immediate, observable physical harm.  That was too simplistic and lead to a broadening of coverage to include occupational illness and diseases that lacked the elements of a single event and a clearly observable injury.  Lead poisoning, asbestos diseases and black lung disease were recognized over time as occupationally related and eventually included in most workers’ compensation schemes.  These examples are based on exposures with typically long latency periods before disability. 

There is a growing recognition of mental injuries as a consequence of work exposures.  Some harms involve multiple exposures and may lack a culminating traumatic event that clearly establishes work-relatedness.   Post-Traumatic Stress Disorder (PTSD) may be the highest profile example.  The mental health impact of toxic work environments, bullying, over-work, excessive overtime and other “exposures” are increasingly acknowledged as work-related. 

What is still missing are the policy and legislative mechanisms to allow for effective adjudication and rapid treatment of these cases.  Also missing are the widespread prevention initiatives to build resilience and reduce hazards that can cause mental injury, illness and disease.

The era of “big data” is also revealing more links between work and disease.  The associations may not reveal causation at and individual case level, but they provide intriguing insights into the incidence and prevalence of occupational illnesses.  Big data and predictive analytics are already being used to highlight previously unidentified risks in manufacturing and processing  [for example, see the post by Griffin Schultz, "The Era of Big Data Analytics in Safety", SafetyMatters, Associated General Contractors of America,  November 2013].  

What’s coming as a result of the advanced analysis and the aggregation of data is more accurate risk identification, improved protective techniques and additional confirmations of work-caused illness and disease--(or associations warranting application of the precautionary principle). The exposures that will be shown by big data analytics to be associated (and perhaps later proven to be of causative significance) have already happened and are continuing to happen. Think of the lives that can be saved and years of disability avoided if we use this new intelligence and act now.

For public policy leaders: Pressure for changed systems (nationalization, dissolution of state funds, competition, opting out)

The pressure for change in the political realm has recently resulted in sudden changes in political leadership and direction in many jurisdictions. Minority positions can change the course of public policy. The challenge for policymakers is to learn from recent examples and apply the lessons learned. Ignoring minority complaints is not an option.

In workers’ compensation and occupational health and safety terms, the pressures for change come from many stakeholders. Workers, advocates, providers, employers, and insurers all have their own views. Ignoring or minimizing these perspectives may alienate current supporters and coalesce opposition to the status quo. “Opting out” of workers’ compensation was once dismissed yet there is a growing movement with some traction that has already changed how Oklahoma will approach workers’ compensation going forward. Pressure to dismantle at least some of the few remaining exclusive state funds in the US has not diminished and there are those who suggest a national scheme might be preferable [See example, DOL, “Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers?”, October 2016] . Canadian workers’ compensation systems have also seen pressure to open their exclusive provincial systems to competition.

Opposition to the status quo should not be ignored as uniformed or dismissed because it is small. Demands for change may well be rooted in legitimate, long-standing and valid criticisms. Engagement will not always result in conversion from opposition to support but it can be cathartic and help crystalize the policy or practice issues that need attention. Respect, transparency, and a sense of urgency are essential to engagement.

Let me be clear, there are excellent performing exclusive state funds, competitive state funds, jurisdictions with public workers' compensation and private delivery/administration, national systems and state systems.  No one model has a right to title of "best" in delivering workers' compensation.    Without data and objective research on performance and outcomes, however, there can be no informed discourse, comparative analysis or considered changes to laws, policies or delivery structures  Public policy requires public support. Without authoritative, objective, timely research and data to support performance (including outcomes), public support of any workers’ compensation model will evaporate. Informed, objective research may be expensive and hard to do but it is essential to assessing the effectiveness of workers' compensation systems. [See ISCRR, IWH, WCRI, CWCI for examples of the kind of research that matters and makes a difference].