The not-so-exclusive remedy

A recent Ohio Supreme Court decision prompted some thoughts about workers’ compensation as the ‘exclusive remedy’ for work-related injury, illness, disease and death.

In Canada and most of the US, we think of workers’ compensation as being the exclusive remedy, that is, compensation for work-related injury or disease is limited to the wage loss, permanent disability and medical compensation defined by the workers’ compensation law and policy in force in a particular jurisdiction. Injured workers (or their survivors in fatality cases) are not permitted to seek other remedies for the work-related losses; for example, a worker is prohibited by law (statute barred) from suing the accident employer or another worker. (Of course, if a third party is at fault, there may be a right of action that may be taken as an alternative to compensation or pursued by the workers’ compensation authority as a subrogated right). The Ohio case reminded me that some states allow for exceptions to the exclusive remedy rule.

In the Ohio case, legal precedent in that state and a change in the Ohio tort law five years ago defined an exception to the exclusivity of workers’ compensation. It allowed a worker to both collect workers’ compensation and pursue an action against an employer if, and only if, the worker could prove the employer acted with “deliberate intent” to harm. The statute reads (in part) as follows:

R.C. 2745.01, effective April 7, 2005,
(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable resumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

The section clearly puts a high test on what would be an intentional act intended to or substantially certain to injure a worker. The examples in paragraph C anchor the intent of the provision to very plausible but likely very rare situations. And the Ohio Supreme Court certainly confirms a very narrow access to the exception.

Similar exceptions to the exclusive remedy exist in some other states for cases of reckless or wanton disregard for the safety of the worker. According to Larson’s, Ohio, Louisiana, North Carolina, Connecticut, Oklahoma, New Jersey, South Dakota, and Texas—now employ a “substantially certain” standard.

In Australia, access to common law remedies still exists in most states (but not in SA or NT and limited access in Victoria and ComCare). In Queensland there is an unrestricted worker right to seek common law damages against an employer for breach of duty or negligence. One report says common law claims represent just four percent of all claims, but 40 percent of claim costs. That state has a discussion paper proposing a narrowing of access to common law by adopting a 10%-15% threshold in whole body impairment.

Social justice reasons are sometimes given for allowing exceptions to the exclusive remedy rule. Some see access to common law remedies for serious harm resulting from intentionally or substantially certain harm as a mechanism to deter such behaviors and improve worker safety. On the other hand, many view exceptions to the exclusive remedy as an erosion of the Historic Compromise.

In isolation, each of these arguments may have merit, however, I am of the view that you cannot look at any single feature of a system—including exceptions to the exclusive remedy rule-- in isolation. This is less a form of cultural relativism and more a position that accepts more than one arrangement of public policy features can achieve similar if not exactly equivalent outcomes.

I am certain others will have strong views for or against exceptions to the exclusive remedy rule so feel free to post them.

Is Asbestos-related Disease a Pandemic?

Last week I attended a conference on Asbestos Surveillance and Compensation. On presentation by Dr. Leslie Stayner (Professor and Director of the Division of Epidemiology and Biostatistics at the School of Public Health, University of Illinois at Chicago) asked the provocative question, “Is there really a pandemic of Asbestos diseases?”

I suppose one way to answer this questions is to ask if Asbestos is causing the same sort of damage as other pandemics. Pandemic H1N1 influenza is a current and convenient comparator. The World Health Organization recently stated, “As of 28 February 2010, worldwide more than 213 countries and overseas territories or communities have reported laboratory confirmed cases of pandemic influenza H1N1 2009, including at least 16,455 deaths.” By comparison, Stayner pointed out that WHO estimates from 2006 placed the occupationally-related deaths from asbestos disease at approximately 90,000 per year:

• 43,000 Mesothelioma
• 39,000 Lung Cancer
• 7,000 Asbestosis
  

He points out that this estimate does not include other cancers such as Laryngeal and ovarian cancers that may be asbestos related.

The next way to evaluate his claim that asbestos disease is a pandemic is to see if it really is represented worldwide. Quoting from various research sources, professor Stayner showed the distribution of mesothelioma alone was covered much of the planet with the highest rates of disease in countries with the highest consumption of asbestos. While Australia had the greatest number of cases mesothelioma deaths per million per year, other countries such as Canada, the US and Great Britain were in similar territory. Countries from Asia, South America and Europe were also widely represented. Africa does not register highly in this analysis (but that may be changing).

So, on the face comparison with pandemic H1N1, asbestos-related disease has almost the same spread and actually a greater number of deaths.

Stayner’s point is that we need to think about asbestos-related disease as being an active disease of the present and not of the past. He notes that asbestos disease is on the rise in most of the world and that production and consumption of asbestos has remained relatively flat (although down in developed countries, increasing in the developing nations). He adds that we can expect the epidemic in the developed world to start to gradually decrease in 10 to 20 years; based on consumption, he expects to see increases in developing nations.

It is important to note that asbestos persists in our environment. The installed base of products with asbestos are going to be with us for a very long time.

As we saw with pandemic H1N1 influenza, once you attach the pandemic label, funds and resources as well as public attention may be brought to bear on prevention, treatment and control. Elimination of disease is the ultimate objective.

Stayner concluded his presentation with the following quote from the WHO 2006 Report on the Elimination of Asbestos-related diseases:

“The most efficient way to eliminate asbestos-related disease is to stop the use
of all types of asbestos.”

Perhaps he is right. Perhaps we should start thinking about asbestos-disease as a pandemic and bringing resources, education, and prevention efforts to eliminate asbestos-related disease.

How serious is a 'Serious Injury'?

All work-related injuries, illnesses and diseases are serious. Period. I will go further and say that many ‘near misses’, exposures, and traumatic events that do not involve any physical harm to the worker are also very serious. If you believe this as I do, you are part of the way to understanding why it is important that such events be reported. You will also agree that the impact of certain work-related harms can be life changing or even life ending while others result in only minor interruption in work or life’s day to day activities. So how do workers’ compensation and prevention agencies decide which harms deserve the most attention?

In measuring the unacceptable, the most common way to differentiate this spectrum of harms is to focus only on those that result in time away from work. Lost-time injuries are the basis for most Injury Rate calculations. There are three major ‘threshold’ measures Injury Rate measures:

• IR or IR0 includes all cases that result in any time lost from work beyond the day of injury
• IR3 includes only cases that involve more than 3 days away from work
• IR5 or IR7 based on cases that involve greater than one work week away from work
  

While WorkSafeBC reports the provincial injury rate as IR0, much of the world uses IR3 as the threshold. The US Bureau of Labor Statistics and OSHA have reporting systems and analysis based on this measure. The Workers’ Compensation Research Institute uses IR7 in most of its analysis.

It is important to note the source of any reports you might look at. While WorkSafeBC is both the workers’ compensation insurer and the primary prevention agency for the province, these roles are often split and the data collected can be very different. Australia reports Compensation Claims Frequency based on absences of greater than a week. This is not exactly the same as an IR7 but it is similar enough for most purposes.

Chile’s ACHS, the largest mutual workers’ compensation insurer, reports the distribution of injuries by number of days lost. Using the translated equivalents of “minor” (1-3 days), “serious” (4-10) days) and “very serious” (the balance usually displayed as separate lines 15 days to 24 days, those in the range of 25 to 50 days and those greater than 50 days).

Categorical measures are common in specific industries. The airline industry, for example, has a Serious Injury Rate (using ‘per 1,000 departures’ as the denominator) and defines Serious Injuries as follows:

Every injury that
(1) requires hospitalization for more than 48 hours, commencing within 7 days from the date the injury was received;
(2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose)
(3) causes severe hemorrhages, nerve, muscle, or tendon damage;
(4) involves any internal organ; or
(5) involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface

The advantage of categorical definitions is that they can quickly focus attention for prevention.
A similar approach is used by WorkSafeBC in its Serious Injury Rate. I would classify this as a composite measure because the measure includes fatalities, long duration claims, high medical costs and other time-loss claims involving certain ICD-9 injury codes. This approach has the advantage of being clearly focused on those work-injury events that have had or could potentially have life altering or ending consequences.

Whatever the method, every system needs a basis to prioritize harms for the purpose of preventing them. Even though there is no universal standard, allocating resources in such a way as to reduce and eliminate harms is an essential element to any prevention strategy.