In a recent blog post, Robert Wilson (WorkersCompensation.com) concluded that workers’ compensation needs a new
“grand bargain”. He supports this
conclusion by arguing that the exclusive remedy that is the main underpinning
of the workers’ compensation system is under attack. He cites three trends as evidence that the
current arrangement is broken.
Specifically, he notes increasing exceptions to the no-fault aspect of
the system, the erosion of worker benefits, and the increasing scope of coverage
for co-morbidities and social issues as three categories of threat to the
current system.
Whether you call it a “grand bargain”, “historic
compromise”, or “historic
trade-off”, the current system of
workers’ compensation is a social contract and it is under attack. One need look no further than the daily news
to see Bob’s issues in the headlines.
This morning’s Pro-publica / NPR article, “The Demolition of Workers’ Comp” certainly supports the contention that the
current system isn’t working. They underscore the erosion of benefits for workers, the declining costs for employers, and
externalization of the human and financial costs of workplace injuries to workers, the taxpayers and society at large.
Bob pointed out strains on the original grand bargain. It was based on principles
and designed to apply in an economic and social context that was changing--not static-- at
the time. The basic principles have
remained the same but the context has continued to change. Science has advanced, we use new materials
and processes, we have different stressors in our environment. We understand today that many factors in the
work environment can cause or be of causative significance of injury and
disease. Workplace stresses including bullying, harassment and work overload
are now known to be factors in mental injuries.
We now understand that PTSD is a real and serious consequences of
certain work exposures. We know or
suspect strongly that shift work that interferes with circadian rhythms is a
probable human carcinogen. This changed
context does not mean that the principles should change.
We also know that workers and work have changed. A century
ago, the argument against including farm workers in the scope of workers’
compensation coverage could plausibly be sustained because farms were mainly
family operations and most of the workers were family. That is not the case today. I don’t see this change as the basis for
throwing out the old paradigm. In fact,
exclusion of farms from the scope of workers’ compensation coverage makes less
sense in the present context. Many
temporary foreign and migrant workers would benefit greatly from bringing farms
under workers’ compensation rules. It
works in some states and provinces; why not make that coverage universal?
Workers’ compensation has always operated on the principle
that we take the worker as we find him or her.
That principle includes many conditions that may make recovery from any
workplace injury more complex or protracted.
The fact that the condition did not prevent work prior to the injury is
not a reason to decry the current scope of workers’ compensation coverage. This is not coverage “creep”. It is, in part, a consequence of medical
science enabling more of us to work despite underlying conditions that may be
managed.
Rather than a new grand bargain, why not try living up to the
original one? The NationalCommission on State Workmen’s Compensation Laws (1972) defined what living up
to the bargain would look like. Looking only
at the main National Commission recommendations
on temporary disability compensation, I found only a handful of North American jurisdictions
that came close meeting the recommended standard. The Pro-publica/NPR
article found only seven states follow at least 15 of the recommendations.
Clearly, the current system of workers’ compensation is not
working in most jurisdictions. The fact
that there are some examples in the US and Canada where the systems do provide
something close to the National
Commission’s recommended standard demonstrates that the underlying
principles of workers’ compensation can achieve the social policy
objective: to protect workers from
work-related injury, disability, illness and death in a compassionate and
sustainable way that still allows the economic activity and innovation
necessary for societies to operate and thrive.
The failures are not in the foundations or underlying
principles of the original grand bargain but in the proliferation of legislative
and policy “reforms” that depart from them.
The National Commission
defined in exquisite terms the minimum standards workers’ compensation systems
ought to achieve. It is against that standard
that each workers’ compensation system should be measured and held to account.
With apologies to Chesterton, the grand bargain that is
workers’ compensation has not been tried and found wanting; it has been found difficult and not
tried. Before we abandon the grand
bargain and strike some new compromise, we ought to try living up to the
current one first.
