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].

Tuesday, November 8, 2016

What are the Workers' Comp/OHS implications of Temporary Foreign Workers?

The demographics of the Canada, the US and Australia are changing.  Falling birth rates, increasing longevity, and shifts in participation rates have consequences for the composition of the labour force.  One demographic effect is the importance of temporary foreign workers who are increasingly filling demand at all skill levels in the economy—a fact that has implications for occupational health and safety (OH&S) and workers’ compensation on both the policy and practice fronts.

The need for temporary foreign workers (TFWs) is often lost in the political rhetoric about undocumented workers and economic migrants.  Changing demographics of the labour force may create skill or personnel shortages in specific sectors or occupations.  When a country has insufficient personnel willing, trained and able to fulfill position necessary to the economy, foreign nationals may be invited or encouraged to fill vacancies.  In some cases, this may be a prelude to a formal application to immigrate; more often than not, however, the legal work authorization is restricted to a specified employer, designated occupation and for a specified time frame.  Seasonal agricultural workers, for example, may be permitted legal authority to work for a specific farmer through the farming cycle (mid-February to October in Canada); work beyond the specified time, for non-specified employers or in roles unrelated to farm duties (childcare, for example) are not permitted.

International students typically are granted authority to work either in their discipline as part of their training or as a means of supporting their continuing education.  “Working holidays” are also encouraged by many governments, as a labour source, a means of encouraging eventual migration, and as part of reciprocal agreements that provide similar opportunities for a country’s own citizens.
How many documented temporary foreign workers are there?  Comparative data are hard to find. OECD published material (OECD, International Migration Outlook 2014) provides the following temporary migration data:

US

Australia

Canada


The rising use of legally authorized temporary foreign workers is evidence of the need for them to fill skilled positions in the economy. In Australia, (Subclass 457 quarterly report quarter ending at 30 June 2016) more than 85% of visas were issued to professionals, technicians, skilled trade workers, and managers.  Local labour market shortages for lower level positions such as cooks, developer programmers and cafĂ© or restaurant managers for most of the remaining visa authorizations granted. 

Canada has two main streams to consider: 
·         International Mobility Program International Mobility Program (By exempting some foreign nationals from needing a Labour Market Impact Assessment before being able to work in Canada, the IMP aims to provide competitive advantages to Canada and reciprocal benefits to Canadians)  and
·         Temporary Foreign Worker Program (requires Labour Market Impact Assessment)

Looking at the number of individuals with valid work permits at year end in these two categories demonstrates the rising presence of authorized temporary foreign workers in workplaces across the nation.  [Note:  in most cases, any accompanying family members of authorized temporary foreign workers are also granted permission to work].


It is true that not all temporary foreign workers will have formal work authorizations.  Where demand is high for a particular occupation, workers without appropriate status may be enticed to take on jobs.  The enticement of (relatively) higher wages and (relatively) safer or better working conditions than available in their home country may fuel the supply of would-be temporary migrants or permanent immigrants.

Comparative data on undocumented workers is even more difficult to obtain for most countries.  In the US, there are 8.1 million undocumented workers; about half work in agriculture [Jeffrey s. Passel and D’Vera Cohn,  Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Institute, November 3, 2016].  That represents about 5% of the US labor force.  Even the supply of undocumented foreign workers is changing.  In the case of the US and Mexico, improving economic conditions in Mexico has contributed to a decline in the flow of undocumented workers.  [Note: undocumented workers may be characterized as “illegal immigrants” but this may incorrectly imply intent to settle rather than return to their home country].

The significant size of the temporary foreign workers (documented or otherwise) component of the labour force has implications for policy and practice in OH&S and workers’ compensation.  These workers are technically subject to the same occupational safety standards and usually have legislative eligibility for workers’ compensation laws as nationals in the employed labour force.  These protections and entitlements are not always clear to the temporary foreign worker or employer.  

Language and cultural barriers may isolate a temporary foreign worker from resources or contacts to facilitate their understanding of and access to the appropriate OH&S and workers’ compensation authorities.  Fear or anxiety regarding immigration status may pose a further barrier to accessing the protections and compensation entitlements.

For documented temporary foreign workers in larger organizations, safety and human resource management systems are likely to overcome some of the barriers.  In general, temporary foreign workers who are documented, educated, fluent, working in larger organizations and originating from countries with strong OH&S policies and robust social insurance that covers work injuries are less vulnerable than other temporary foreign workers. 

For inspectorates in the field and other OH&S professionals, the usual challenges may be complicated by similar barriers. Undocumented workers in particular may fear that reporting a hazard or refusing unsafe work may result in a referral to immigration authorities.  Worker reports and responses to questions are important inspection inputs and prevention factors; understanding and overcoming reticence among TFWs and undocumented workers is essential to identifying hazards, controlling risks and correcting errors that can cause injury, death or disease to workers and others in the workplace.

Adjudicative staff in workers’ compensation programs may experience TFW reluctance to disclose causation because of fear regarding return employment/recall rights for injured TFW in seasonal agricultural worker or guest worker programs in the hospitality industry.  Undocumented workers may not wish to pursue entitlements for fear that reporting by the workers’ compensation agency to immigration or other authorities.  Even if the worker makes a successful workers’ compensation claim, questions about ongoing treatment, rehabilitation, and employability in the TFW’s home country will arise.  What wage rate should be used?  What alternative occupations for loss of earnings determinations should be considered for an undocumented worker who must return to his or her home country following an injury? 

Active claim and hazard/injury reporting suppression may also occur.  There may be misperceptions regarding the responsibilities of employers.  For example, many contracts require TFWs who are unable to work to return to their home country; an employer may legally cease to supply room and board to a worker unable to work thus making return home the only economic alternative for the worker. This may limit diagnosis, treatment and rehabilitation options as well as discourage an injured TFW from filing a  workers’ compensation claim.

For policy makers, there are important questions that may cut across jurisdictional lines.  These include:
  • ·         How can we ensure TFWs are adequately informed of their protections and entitlements under the law?
  • ·         Do TFWs need different approaches to provide equivalent protections and compensation?
  • ·         How can cultural, social and language barriers that inhibit access be minimized?
  • ·         If the worker must return to his or her home country, what standards of treatment, fee schedules, reporting procedures and monitoring should be applied?
  • ·         Can a “mandatory reinstatement” provision be enforced if a worker has no legal rights to remain in or return to the country of injury after recovery?
  • ·         Should there be provisions to assist injured TFWs to continue to stay in the country while receiving treatment for work-related injuries. 
  • ·         How should TFW exposures to occupational toxins and other agents of occupational disease be tracked?  What provisions should there be for occupational disease claims once the TFW leaves the country?


Beyond the TFWs, students and “working holiday” participants noted here, there are other categories of non-citizen workers in the economy.  Refugees are an obvious group who may seek temporary protection due to persecution, genocide, insurrection, or war.  The compassionate act of providing refuge is meaningless without providing a means of support such as authorization to work.  Even if refugees intend to return to their home countries when conditions allow, the OH&S and workers’ compensation issues overlap with the TFW issues noted here. 

The data suggest documented and undocumented TFWs are likely to be present in the economy in substantial numbers for years to come.  Without coherent, specific policies and sensitive, responsive practices workers’ comp and OH&S jurisdictions, at least some TFWs may be disproportionately at risk or exploited.  Incident and injury under-reporting or suppression may obscure serious risks and deficiencies.  Not only is this unfair to TFWs and their families, it may also put citizen workers and others in the workplace at risk

At a minimum, the presence and extent of TFWs in the economy deserves closer attention and research. I could find no specific published studies on the incidence rate of injury or workers’ compensation claim rate among temporary foreign workers.  (Do TFWs have similar injury rates to citizen workers?)    Improved statistics, tracking and reporting are important but the special needs of this segment of the labour force need to be addressed is such a way as to counter fears and overcome the inherent challenges of a temporary foreign resident who suffers work injury or disease.


Monday, October 24, 2016

What do changing demographics mean for workplace health and safety?


If you knew your workforce was going to experience changing risks, increased exposure, longer recoveries from injury and greater effects associated with co-morbidities, you would act!  The fact is, our workforce is changing and few organizations are even aware of the change let alone the consequences.   

[This post contains slides and content arising from my presentation to the Occupational and Environmental Medicine Association of Canada (OEMAC) Scientific Conference  September 2016].

The aging population is not just a North American problem.  The median age of the population in most industrialized countries is projected to rise dramatically.  I adapted the following Pew Institute graphic to include Canada and Australia but its message is clear:  over the next few decades, the median population age of many of the most important economies in the world is going to rise. 



For Canada, the US and Australia, this shift to an older population will not be limited to the median age.  Populations of older people are growing while birth rates are low or falling and immigration levels stagnant.  Because demographics drives the demand for goods and services and provides the supply of workers, changing demographic patterns are altering the character and needs of the population, the labour force, the economy and more.   

Demographic change drives both the supply of potential workers and demand for goods and services.   The Canadian population, for example, is growing at about 1% per year overall.  The working age population (18-64) is growing at about the same rate but the oldest and youngest segments of the population have very different profiles.  In the last decade, the population over the age of 65 has risen by more than a third and is nearly 50% larger than it was in 2001.  On the other hand, the population ages 0 to 17 years of age has actually declined over the same time frame. 



Canada’s population projections all point to a continuing trend toward an older population.   The Canadian population will rise by a little more than 5 million in the next thirty years but the increase in the population over age 65 will account for nearly 90% of that growth. 



Already we are seeing skill shortages in several sectors and regions related to this demographic change.  I mentioned the population over the age of 65 has risen by about 50% since 2001 but the numbers continuing to work full time have risen by 350% over the same time.  Part-time work for those over age 65 has also risen by about the same percentage.  Full and part-time work for those over 70 has also risen by more than 250%. 




This trend is also evident in Australia:
"The majority of Australians intend to retire between 65-69 years, but the results show that now over a quarter of males 45 years and over plan to work past 70 years.”  [Australian Bureau of Statistics, Australians intend to work longer than ever before, Media Release 40/216, 29 March 2016]

The trend toward more workers being engaged in full time work beyond age 65 is particularly evident in the US data.  I recently extended published US data to capture more recent developments that show full time employment dominates among those working beyond age 65.



We are not only seeing an increasing number of older workers in the economy, but the distribution of even the category of older workers in some industries is trending toward the upper age limits of recorded data.  For example,  I used Canadian Institute for Health Information CIHI data on registered nurses and nurse practitioners (RNs and NPs) as  an example and found that the distribution of those aged 70 and older has double in the last decade. 



By about 2030 under most projections, the category of persons aged 80 and older will outnumber any other 5 year age group in our population.  This has implications for the demand on care services, healthcare, housing, transportation and many other aspects.  One example of this trend is the dramatic rise in Licensed Practical Nurses (LPNs), a profession highly associated with care for the elderly and disabled.  In the last decade, the number of LPNs has risen with the older population while the supply of RNs and NPs has tracked closer to the growth rate of the population aged 18 to 64. 



Of course, people who decide to go into nursing or healthcare of any sort are needed but that also means they are unavailable to become electricians, truck drivers, educators, researchers, programmers and construction workers—occupations that are also necessary to the growth and maintenance of our economy.  The problem of limited supply of youth and a falling birth rate means these roles are going to have to be filled by others.  We are already seeing a dramatic rise in the working population over age 65 but this, too, has its implications. 

Working longer means greater exposure to hazards, greater risk of injury and complications due to comorbidities and conditions related to normal ageing.  How prepared are employers and safety professionals to address these changes? Are workers adequately aware of the risks?  Are safety professionals and employers aware of changing risk profiles of older workers?  Are there appropriate ergonomic tables to provide guidance on strength and repletion limits for older workers?  Do workers’ compensation laws adequately address work careers that may extend into their seventies, eighties and beyond?  Are health and safety systems capable of addressing risks associated with older age groups not previously prevalent in your workplace?

There is a lot of evidence that work is good for your health and wellbeing.  That applies to older individuals where work can provide income security, mental stimulation, exercise, socialization, and opportunities to “give back” or do something meaningful and productive with one’s time.  Moreover, many workers approaching retirement age today have skills, knowledge and experience that are just not available in the labour market.  These factors and the demographic changes noted above mean we are seeing more older workers in the workplace—a trend that will continue for more than another decade. 


It is not too late to act.  Understanding the changes is the first step… and perhaps a self-serving one:  chances are, if you are working today, you will be working to an older age than your parents or grandparents.  

Thursday, September 29, 2016

Why aren’t all time-loss work-injuries compensated?

The following recent headlines demonstrate how important that weekly paycheque is to workers and their families:
The financial impact of even a brief interruption in earnings due to a work-related injury or disease can be devastating.  Despite the legislative intent of workers’ compensation laws, the simple reality is that many—perhaps the majority—of those who miss time from work due to a work-related temporary total disability never receive workers’ compensation for their lost wages.
Employers, family members, and even policy makers may assume workers’ compensation coverage is there for every case of work-related time-loss injury.  The assumption may blind them to the serious gaps exist for many workers in the employed labour force.  For some, understanding the gaps may provide the impetus to fill them.  At a minimum, knowing that gaps in coverage exist will allow those with the resources to prepare for interruptions in earning due to workplace injury or occupational disease.  Unfortunately, for many workers and their families, there are no resources to cover the gaps; using private savings or buying individual disability insurance coverage are not realistic options.
Work-related injuries can occur to anyone engaged in employment in the labour force.  Clearly, those institutionalized or in the military are not available for employment in the broader labour force;  those who are incapable of work, retired or otherwise withdrawn from the labour force are not available for work.  Those who are unemployed but looking for work are available for work but any injuries that occur to them don’t arise from work so are excluded from this discussion.  That leaves the subset of individuals engaged in work for themselves or someone else; it is from this population that work-related injuries occur;  only a subset of those are covered by workers’ compensation. 
As may be noted in the figure below, work-related injuries that result in time away from work can arise from employment within the scope of workers’ compensation or outside it (self-employed, exclude small enterprises, and excluded occupations or sectors).    Inclusion within the scope of workers’ compensation coverage, however, does not automatically lead to compensation.
relationships-between-populations-and-work-injuries
  1. Injuries to workers outside of workers’ compensation coverage are excluded
First, let’s look at the intentional exclusions from workers’ compensation coverage.  The actual coverage of the employed labour force ranges widely by jurisdiction.  Many states and provinces define the industries and sectors that must carry workers’ compensation coverage; a few mandate blanket inclusion then identify specific exclusions. Common exclusions include agricultural workers, domestics, professional sports players and self-employed.  In some jurisdictions, firms with fewer than four or five employers may also be excluded from mandatory workers’ compensation coverage. 
NASI estimates workers’ compensation coverage in the “total workforce” is estimated by to be approximately 90% in the US [2013 data]; AWCBC  puts the Canadian “employed labour force” coverage rate at about 84% [2013 weighted average] but the calculation method is somewhat different.  Australia reports that 92% of its employed labour force is covered by workers’ compensation (often called “WorkCover”). 
Both the US and Canada have wide variations in the coverage rate among the states and provinces.  Texas, where employer “non-subscription” to workers’ compensation is an option, approximately 67 percent of private, year-round employers have workers' compensation;  these employers account for about  80 percent of the private workforce in Texas. [Texas, Department of Insurance, Division of Workers Compensation, Biennial Report of the Texas Department of Insurance to the 84th Legislature , December 2014].  That is likely at or near the low end of coverage rates in the US but no standardized calculation is available to allow state-by-state comparisons. 
 In Canada,  there is a standardized calculation methodology that allows province-to-province comparisons (including self-insured and federal employees in the covered percentage).  The recent calculated “percentage coverage”  rates for each province/territory and the Canadian average are shown in the following figure:
labour-force-covered-canada
While the average is approaching 85% and has been rising since 2000, there is a clear divide above and below the national average.  
As far as I can tell, there is no similar analysis on a state-by-state basis in the US.  It is reasonable to assume, however, that there are states where more than 95% of the employed labour force is covered and others where the percentage may be as low as 75%. 
“Self-insured” employers are typically included in the calculations as long as they are required to provide legislatively mandated workers’ compensation coverage.  Firms outside the scope of coverage or not required to comply with workers’ compensation law are typically excluded from calculations.  As a matter of practice, such firms may well purchase and offer disability insurance, although a few will carry the risk and manage their own liabilities. 
As an aside, there are two main types of self-insured employers: 
  • those that are self-insured and self-administer their own claims (or contract a third party administrator to do so on their behalf), and
  • those who are self-insured without self-administration.   
In most Canadian provinces, self-insurance does not include self-administration.  Self-insured employers are financially responsible for their own claims but the administration of the claim including initial adjudication is administered by the provincial exclusive workers’ compensation system.
Australian workers’ compensation coverage alone would be around 80% of the employed labour force; adding the “self-insured” employers, the figure rises to about 90% [based on 2013 data].  It should be noted that self-insured in Australia means self-insured with self-administration (including third party administration) in conformity with benefit levels mandated by the workers’ compensation legislation.  Self-insured firms in Australia manage their own financial liabilities arising from their own claims. 
The implication here is that intentional exclusions in Canada, the US and Australia result in 10% to 15% (on average) of employed members of the labor force outside of the scope of workers’ compensation coverage.  If the rate of injury to this excluded group is similar to the rate experienced by those within the scope of coverage, then 10% of 15% of time-loss or wage-loss resulting from workplace injuries are excluded from the possibility of compensation.  
As may be noted from the Canadian data, variation in percentage covered in some jurisdictions over time.  This is rarely due to sudden changes in the scope of coverage.  More often than not, the variation relates to changes in the distribution of the employed labour force among sectors of the economy (including sectors excluded from mandatory inclusion in the workers’ compensation system).  
The “scope of coverage” decision is a public policy choice but it has important consequence for those outside the coverage umbrella.  Clarity around who is excluded and why is important and necessary in order for workers to assess their own financial risk.  Those who can afford it may choose to purchase private disability plans. 
Intentional exclusions explain why one segment of work-related time-loss injuries that are not compensated.  Being within the scope of workers’ compensation coverage, however, does not automatically result in payment of compensation for days lost due to a work-related injury and disability.
  1. Injuries Accepted and Compensated
This is the firmest statistic you can find at a state or provincial level.  It is typically reported on the basis of a claim where “indemnity” or “wage-loss” compensation was paid for “temporary disability”.  Some jurisdictions make a distinction between temporary total and temporary partial disability payments. 
For the purposes of this analysis, any workers’ compensation claim that has even a partial day of wage-loss compensation paid would be considered in the count.  Medical-aid claims (or “healthcare only” claims) are not considered as “accepted and compensated” for the purposes of this analysis.
Time-loss claims that are “accepted but not paid” are discussed later but introduced here to contrast with the compensated case.  A worker who experiences a Monday injury (in a typical Monday to Friday work week) and is away from work the next three days (Tuesday, Wednesday and Thursday),  then returns to work Friday may receive no wage-loss compensation if the jurisdiction has a three-day waiting period; doctor bills and medication may be paid but no compensation for time away from work would be payable because of the three day waiting period.  Such a claim would be counted as accepted but not paid. 
In some provinces, employers may pay the first week or two of wage loss in order to maintain income continuity for injured workers.  The employer is re-imbursed by the workers’ compensation insurer thus maintaining the tax-free status of the compensation.  In Australia, employers may be required to pay wage loss compensation for the first 5 or 10 working days before workers’ compensation payments for wage loss begin.  This sort of “employer deductible” would be counted as an accepted claim with compensation paid.
The statistic for “work-related time-loss injuries with temporary disability compensation” may be reported as or along with an “injury rate”.  This may be misleading depending on the denominator used.  As indicated in the figure and explanation above, this fraction of work-related injuries relates only to covered employment and only to claims that received payment.  Unless coverage is near 100% and wage-loss compensation is paid for all time away from work (that is, no waiting period), this is more aptly entitled “paid claim for covered injuries rate”.  
These first two categories – workers’ compensation “excluded” and “accepted and compensated” might be assumed to tell the whole story but research evidence suggests otherwise.  Some studies of fatalities and cases involving hospitalization show medium to high correlation between hospitalization records and workers’ compensation [for example, see  Koehoorn M, Tamburic L, Xu F,  Alamgir H, Demers PA, McLeod CB, “Characteristics of work-related fatal and hospitalised injuries not captured in workers’ compensation data”, Occup Environ Med doi:10.1136/oemed-2014-102543];  however, most research studies reveal large discrepancies between cases reflected in workers’ compensation data and other sources such as hospital records [see  Boden LI, Ozonoff AL . Capture-recapture estimates of nonfatal workplace injuries and illnesses. Ann Epidemiol 2008;18:500–6. doi:10.1016/j.annepidem.2007.11.003].
Next we examine four main categories of work injuries that are not compensated. 
  1. Time-loss Work-injuries Accepted but Not Paid
Workers with otherwise acceptable work-related time-loss injuries may be “disentitled” from receiving compensation. 
  • Waiting period non-payment
As noted above, waiting periods can result in non-compensation for wages lost due to absences caused by work-related injuries for cases within the scope of employment.  Waiting periods are “worker deductibles” and have been eliminated from all but two Canadian jurisdictions and all Australian jurisdictions.  In the US, waiting periods range from three to seven days.  Most states have a “retroactive period” that waives the waiting period for work absences that extend beyond a given duration (two to four weeks, typically).  Time-loss claims with no wage-loss compensation are considered “accepted but not paid” for this discussion.
  • Concurrent employment or other earnings disentitlement
Otherwise acceptable claims may also fail to qualify for compensation.  In the case of concurrent employment, for example, an injured worker may be disabled from one job but able to work in a second, concurrent job.  Wages from a second or other multiple employment(s) may negate any earnings loss from the injury employment.  Such a claim would be counted as accepted but not paid.
  • Process issues resulting in non-payment
Still other claims are accepted but no payment is made to the worker because of lack of contact with the worker. The transient or tenuous nature of the injury employment may be one reason for this phenomenon.  For example, a migrant farm worker may suffer an injury, get immediate treatment then return to his or her home country to convalesce.  Assuming farm work and migrant agricultural workers are covered and the injury properly reported, the immediate medical bills  may be paid (often directly to the physician, hospital or other provider) but any payment to the worker may be impossible due to lack of contact information.   Such a claim would be counted as accepted but not paid.  
As noted at the beginning of this article, many workers have little or no financial reserves.  The lack of financial resilience means all aspects of their lives are put in jeopardy as the result of even a short work absence due to work-related injury.  Workers move to lower-priced accommodation, live with relatives in an unknown address in or out of state (in the case of temporary foreign workers this may be out of country) to have assistance and support in recovery, leave the city to reduce costs, etc.  Such cases may still have “technical entitlement” to wage-loss compensation but the insurer may “suspend payment” the claim processing due to lack of contact with the injured worker.  Medical bills and hospital bills might be paid if they were directly submitted to the insurer. 
  1. “Denied” (or “not decided”) claims
Employers may properly report injuries and workers may fill out all the appropriate claim forms for injuries they and even their physicians believe arose in the course of and out of the duties associated with their work but the claim may be “denied”.  This term may or may not have a specific meaning for a particular jurisdiction.  If an injured employee applies for benefits but his employer is not properly insured, the claim could be denied or “rejected”.  Many jurisdictions have laws that will allow coverage of injuries where the employer should have been registered or insured but this is not universally true.
A more common category of denied claims involves those where the insurer accepts that the employer is covered and that the employee is a worker but does not accept that the particular injury occurred as a result of work or that the consequences of the injury are sufficient to warrant time away from work.  Back pain may have a sudden onset at or after work but linking work to the injury may be complicated and contestable.  Stress, repetitive strain,  and cumulative damage from repeated incidents are frequently contested by the insurer.  In these cases, the worker and even the employer may well believe in the “work-relatedness” of the injury but the insurer may rule the injury did not arise from work. 
Statistics on denied claims (which may be reported as “rejected”, “disqualified”, or “disallowed”) are rarely reported.  When they are, it is difficult to assess what portion of the claims could be considered work related.  Few claims that are initially denied are subsequently appealed or reviewed for the accuracy of the denial decision.  To workers and many others, these claims are often the genesis of mistrust of the system.  That said, workers’ compensation has a limited mandate and the work-relatedness or causation decision is critical to the integrity of the system. 
Workers may “over-report” injuries (including those adequately treated with on-site first aid;   disinfect and bandage an abrasion, for example) to record an exposure, build evidence of poor or unsafe working conditions, or because of misinformation on the nature of workers’ compensation.  These cases are often turned down for any compensation.
Some quite serious injuries that occur at work may be denied because of “horseplay” or other actions that essentially take the worker out of the course of employment.
An injury may well arise from work activities and be documented by both the worker and the employer as being work related;  the insurer may also agree and accept the claim to pay doctor bills and medication but rule that wage-loss compensation is unwarranted.  Despite a valid work-injury claims, no compensation is payable because the worker is deemed able to work (not totally disabled).
Despite the potential negative connotation of the terms “rejected, disallowed, disentitled,  and denied”,  these decisions are essential components of adjudication in workers’ compensation.  Legislation and policy define the limits of the coverage; acceptance of cases beyond that scope undermines the will of the legislature and the financial integrity of the system.  The consequences of not properly adjudicating claims include  losses due to fraud and abuse that would increase costs for employers and threaten benefits for legitimate claims.  
An injury that is attributable to work may carry secondary benefits that motivate the filing of a claim that will or should be ultimately and properly denied.  In the US, the lack of universal health care may be a motivator to opt for an attribution to work of an injury of uncertain origin.  In the absence of a clear etiology, the attribution of a back injury to work activity, for example,  may afford access to medical care and even improved social status or family support. 
Few jurisdictions release any information on denial rates of initial claims.  Even where data are available, it is hard to tell how many denied claims might eventually have involved wage-loss compensation. 
There is also little data on claims that have incomplete information required to make a decision.  Similar to claims that are decided but payment suspended due to lack of contact with the injured worker, those with work-related time-loss injuries who move, return to their home country, or otherwise lose touch with the insurer may lose possible entitlement because of the lack of continuing contact or supply of additional information needed to complete the claim process.  In some states, there are legislated timelines for deciding claims.  Claims that are otherwise acceptable may be denied in order to meet time limits imposed by the regulator.  Provisions for reconsideration or “unsuspending” claims may exist but data are hard to come by. 
  1. Worker under-reporting (including non-reporting)
Assuming an employee works within covered employment and suffers a time-loss injury, there are several reasons why the injury might never be reported to the workers’ compensation insurer even if the employer is otherwise supportive of workers’ compensation reporting and claiming. 
  • Third-party action (considered, initiated or in process)
Injured employees are not permitted to sue their employers or other workers for work-related injuries that arise in the course of their employment.  This “statute bar” is an essential component of the workers’ compensation “exclusive remedy” that is at the core of the grand bargain or historic compromise that is workers’ compensation.  Where a third party is involved, and that third party is not an employer or worker under the workers’ compensation legislation, the worker may have an option of pursuing an action.  The choice to pursue such action may prevent a workers’ compensation claim.  In some cases, a worker may claim workers’ compensation benefits and subrogate the right of action against the third party to the workers’ compensation insurer.  This, however, removes the decision-making from the injured worker.
  • Gradual-onset and Out-of-time
Work injuries and occupational disease may not become apparent immediately.  Most jurisdictions have time limits within which a work injury or occupational disease must be reported or workers’ compensation claimed.  With few exceptions, former workers—those no longer in the workforce or those who are unemployed at the time of a claim—are unlikely to have a successful workers’ compensation claim.  Exceptions may be made for cases where the diagnosis was delayed or other barrier prohibited the timely report and claim.
The connection between work and the development of disease or an injury may not be immediately obvious.  Unlike injuries that have a single, sudden traumatic origin, some mental injuries such as Post Traumatic Stress Disorder (PTSD) may develop over time with disability occurring as a result of one or several events that happened over time.  First responders, for example, may be exposed to horrific scenes of death and violence.  The psychological toll may result in non-disabling or disabling conditions (including sleeplessness, depression, anxiety, anger) but may also result in more serious issues not immediately proximal to a specific definable event.  
Bullying in the work environment (from customers, bosses, or co-workers) is a recognized workplace health and safety issue.  By definition, bullying or harassment (including sexual harassment) is a pattern of behaviour, not a single event.  Some jurisdictions have specific occupational health and safety regulations or standards that require employers to act to prevent bullying or harassment; workers’ compensation systems may cover injury as a result of bullying or harassment but the lack of consistency may contribute to under-reporting.  Workers who suffer illness or injury as a result of bullying in the workplace may be unaware of compensability.  Worse yet, workers may fear further bullying or harassment if a claim is made or the pattern of incidents is reported. 
  • Non-reporting
Why wouldn’t a worker claim workers’ compensation for a work-related time-loss injury?  Leaving aside employer inducements and active claim suppression (which we will get to shortly), there are several reasons including:
  • Lack of knowledge of rights
  • Misconceptions about benefits
  • Substitution of other income supplement
  • Barriers of language, culture
  • Fear of collateral consequences (undocumented worker fearing detection and deportation)
  • The “hassle” factor (forms completion, retelling injury story, meetings)
  • Social or work-group pressure
This last item can be quite significant.  In my career as a vocational rehabilitation consultant I never saw a roofer or faller with a minor injury.  Unless they were taken from the worksite on a stretcher, workers in these occupations seemed to view a workers’ compensation claim as a sign of weakness.  Even among nurses and caregivers, there was a sense that some injuries are “just part of the job”.  The social stigma in these occupations may be changing but is still present but no one should have to accept work injury as a consequence of work.
As noted earlier, many workers have little or no financial reserves.  For these individuals, the financial impact of a waiting period that may be as long as a week coupled with the delay between date of injury and first payment can be an overwhelming concern.  For workers that have access to paid sick leave,  the decision to opt to use paid sick leave that ensures no loss of earnings and no delay in payment over workers’ compensation is an obvious choice.  Unfortunately, this externalizes costs to others.  Sick leave is a taxable benefit often factored into the wage cost in collective agreements.  Using sick leave for work injuries removes the focused financial incentive workers’ compensation provides in promoting workplace health and safety.
The hassle factor refers to the effort cost of filing a claim relative to the expected benefit.  If I think I will get little or no benefit from making a claim, why should I bother?  A few jurisdictions have “dial a claim” services or establish a claim on the basis of any report of injury from a physician, employer or worker.  Some jurisdictions require claims to be submitted in specific manual forms through specific channels with the employer.  The hassle factor of the latter may make filing for short time-loss not worth it to the individual. 
Under-reporting by workers not only deprives the worker of entitlements or externalizes costs to others, it dampens an important safety feedback loop and distorts the risk profile of the workplace.  Those distortions may result in underestimation of hazards and risks creating an information vacuum or asymmetry to the potential detriment of workers and others in the workplace.
  1. Injuries under-reported by employers
Under-reporting by employers have similar consequences to under-reporting by workers but the underlying consequences and motivations are different.  The categories here include the following:
  • Benign Non-reporting or Misreporting (no active intent)
Benign “non-reporting” is not direct claim suppression but may relate to a misunderstanding of requirements or administrative barriers related to poor training or administrative systems.  Training deficits and lack of experience are often at the route of the issue.  Employers, particularly smaller ones, may rationally and properly focused on production issues and the challenges related to meeting staffing demands that arise following an injury; reporting may not be seen as a priority particularly if the procedures are not well known or systems lacking. 
  • Intentional Under-reporting (active intent)
 Intentional under-reporting or misreporting (showing an injury as no time-loss when, in fact, the injury does involve time away from work or otherwise meets reporting criteria) may be as large as 9% of the reported time-loss workers’ compensation volume. [Prism Economics and Analysis, “Workplace Injury Claim Suppression: Final Report” prepared for WSIB, Ontario, April 2013].  Motivation for this behaviour may arise from perceived consequences of reporting claims as a result of the “experience rating” or rate modification systems that exist in most jurisdictions.  Critics claim:
...Experience rating causes the under-reporting to a WCB of occupational disabilities, it creates false statistics that tend to diminish OH&S… Experience rating also creates an incentive for employers not to report to a WCB disabilities sustained by a worker that employers have a statutory duty to report.” [Terence Ison, “Reflections on Workers' Compensation and Occupational Health & Safety" (2013) 26 C.J.A.L.P. 1-22] .
In some jurisdictions, it is the responsibility of the employer to report the workplace injury to the workers’ compensation insurer or authority.  This requirement is over and above requirements by the occupational health and safety authority unless, of course, the insurer and the OH&S agency are one in the same (WorkSafeBC, for example).   
To encourage reporting, legislators often set time deadlines and impose penalties for non-reporting or delayed reporting.  However, there is no centralized source of information on the prevalence of non-reporting or delayed reporting by employers. 
  • Employer claim suppression (intentional indirect or passive)
Whereas benign and intentional under-reporting relate to direct action (or inaction) by employers, subtle and overt claim suppression by employers induce actions (or inactions) of workers with regard to claiming workers’ compensation for time-loss injuries.  One study summarized the issue this way:
Employer inducement can be either overt or subtle. Overt inducement consists of threats and sanctions. Subtle inducement can take four forms:
(1) appeals to loyalty,
(2) willingness to pay wages and medical benefits in lieu of a workers’ compensation claim,
(3) group-based incentive programs  that foster peer pressure to suppress reports of injuries, and
(4) perceptions that an injury will diminish prospects for promotion or increase the risk of lay-off.  [Prism Economics and Analysis, 2013]. 
By the way, “injury free” group performance incentive programs fall into this category of claim suppression.  That is why most occupational safety and health authorities discourage or prohibit incentive programs that could be an inducement to under-report work injuries.  [For example, OSHA, “Memorandum: Employer Safety Incentive and Disincentive Policies and Practices”, March 12, 2012]
These inducements are more difficult for regulators to detect.  They are most effective on employees who are most vulnerable.  These include workers with limited knowledge of their rights, few alternative employment prospects, and precarious employment situations.  That said, large firms as well as small have been found to engage in these activities.   
The likely fraction of work-related time-loss claims that receive compensation is a function of these factors.  Studies in the US and Canada along with published statistics can help fill in the values for a given jurisdiction. 
This is critical information for policy makers as well as workers and employers.  If the fraction of accepted and compensated work-related time-loss injuries is unacceptably low in a given jurisdiction, then administrative and policy actions can be taken to improve the percentage.  Actions include:
  • Expanding the scope of coverage to include currently excluded occupations and sectors
  • Promoting coverage to those with option of coverage
  • Educating workers and employers on their rights and obligations
  • Streamlining application and benefit payment systems
  • Specific programs for those in precarious and contingent employment
  • Identifying administrative and policy barriers that result in denied claims