Do California and Canada have a lot in common when it comes to workers’ compensation?

Do California and Canada have a lot in common when it comes to workers’ compensation?   In preparing my presentation to the annual meeting of the California Workers’ Compensation Institute (CWCI.org),  I updated some of the information from a very nice briefing comparing coverage in California and Canada published by the Institute for Work and Health (IWH.on.ca)in 2010.  The broad parameters of the workers’ compensation context are similar:

                                         Canada                     California                

Employed labour force (2013):   17,731,000     17,053,071  (June)

Estimated covered by WC:  14.8 million (2013)   14.7 million (2012)

Actual [weighted]Average
 Assessment Rate for Assessable 
employers  ($/$100):            1.96  (2011)         2.46 (June 2012)

The coverage in California is set by legislation and similar to what you might find in many US states:

• 2/3rds  Average Weekly Wage
• Three day waiting period (with two week retroactive period)
• Max insured 2014: $1,611.96 per week (about $84,000 per year)

Each Canadian province has its own limits.  Most do not have any waiting period; most cover 85 to 90% of Net average earnings to a maximum ($77,900 BC, $92,300 Alberta, $84,100 Ontario, no maximum in Manitoba). 

Administration costs are difficult to compare.  In Canada, each province has a workers’ compensation board or commission that is the equivalent of an exclusive state fund.  The Association of Workers’ Compensation Boards of Canada (AWCBC.org) reports Administration Costs for Assessable Employers was $1,474,841,000 in 2011.  The IWH study reports 2007 data for California that pegs  the insurer underwriting profit of  $1,976 million and Administration expense $5,323 million.   That makes the administrative cost in California about five times that of Canada. 

What accounts for this significant difference?  A lot of US commentators have suggested that Canada’s universal healthcare may account for some of the difference.  In fact, however, Canadian workers’ compensation boards are “first payers” for healthcare costs.  Payments by provincial workers’ compensation boards are excluded from the definition of “insured health services” under the Canada Health Act.  So the same healthcare costs paid for by US workers’ compensation insurers are also paid for by Canadian workers’ compensation boards. While the Canadian systems benefit from a population who all have health care coverage and certain economies of scale by building on systems, medical fee schedules negotiated by provincial agencies and lower prescription medicine costs. 

Another possible source for the difference between California and Canada is the number of insurers authorized to provide workers’ compensation coverage.  In Canada, there are a dozen workers’ compensation boards—each with its own exclusive jurisdiction (monopoly providers in their own jurisdictions); in California there are more than 200 authorized insurers writing at least $50,000.00 of premiums (the largest by market share is the STATE COMPENSATION INSURANCE FUND). 

There are, of course, many other differences between Canada and California.  The rate of disputes, the way disputes are settled, differences in self-insurance with and without self-administration, the risk associated with the mix of industry,  and the scope and involvement of workers’ compensation in occupational health and safety (prevention, education, enforcement and regulation) are just the beginning of areas to consider in comparison.   That said, both Canada and California continue to see substantial human and financial costs of work-related injury, disease and death.  Comparing approaches to workers’ compensation between jurisdictions may yield new insights into prevention, treatment and return to work—something valuable to everyone. 

Can a Childhood Illnesses be considered an "occupational disease"?

Key  “measles outbreak” into a news search engine (or ask Siri) and you will see stories from Canada, New Zealand, the US, Syria and many other countries about recent clusters of cases in schools and communities.  Other search terms reveal similar results.  The health concerns reported are often focused on kids but occasionally you see stories that include concerns for teachers, staff and  other community members. 

Every time there is a reported “outbreak” I  get a lot of questions about the compensability and prevention obligations of employer regarding infectious diseases. 

As every parent, caregiver, and early childhood educator knows, a child with a cold can easily pass on their illness to siblings, parents, nannies, caregivers and educators they come into contact.  Considering colds alone, young children may contract 8 to 10 each year before they turn 2 years old (NIH) while older children get an average of 6 to 8 colds per year (Worrall, Common Cold, Can Fam Phys, Nov 2011; 57(11): 1289–1290). Given that the average cold lasts about 10 days, young children can spend a third to a quarter of their pre-school lives with a runny nose.  Add to that other common childhood diseases like influenza, measles,  and chicken pox and you might be forgiven for concluding that “children” are nature’s most perfectly designed vectors of disease.

In reality, however, limiting the spread of infectious diseases can be achieved through frequent, effective hand-washing, routine site hygiene and “distance” during illness.  While inconvenient for parents, keeping kids home when they are infectious (in the case of colds, about five days after the cold symptoms begin) can be an effective strategy in preventing the spread of disease to other students, staff and the community.  There is no vaccine (yet) for the common cold or norovirus, but vaccination is another effective strategy for protecting both the person immunized and the unimmunized population they are in contact with from serious illnesses like many seasonal flu strains, measles, mumps, and chicken pox. 

Childcare centres, kindergartens and schools are obvious targets for preventing the spread of disease.  Sadly, budgetary pressures may lead to actions that actually increase the potential for the spread of disease. Washrooms that are cleaned less frequently, hot water being turned down or off,  and inadequate supplies for washing and drying hands may cost more in terms of work absences and the health of students, families and the community than any marginal savings that may be gained. 

Is any of this a workplace health issue?  Yes.  It is easy to overlook daycares, preschools, tutoring centres and regular schools when thinking about workplaces but for the teachers, teaching assistants,  early childhood educators, custodian and office staff, these locations are workplaces.  And the owners, operators and school boards responsible for them have a duty to provide for the health and safety of all workers and other persons (including children) in the workplace regardless of the compensability of any particular case. 

Many educators, other school-based staff, and cleaners contract illness in their workplace. Some file a claim with a workers’ compensation authority but many simply take two aspirin and a dose of personal sick leave.  For illnesses that are common and active in the community, this is reasonable—it is as likely as not the disease was contracted in the community rather than the school.  This does not remove or lessen the duty of the employer to provide a safe and healthy work environment.  In the case of specific illnesses such as measles, mumps, chickenpox, norovirus, Fifth’s disease, etc. the teachers and other staff infected in a localized outbreak may be maybe entitled to workers’ compensation. 

A few years ago, the British Columbia Teachers’ Federation circulated the accompanying poster to all schools.  It consolidated on a single page many of the illnesses law and policy have defined as occupational diseases that may be work-related for teachers.  The list of diseases that may be related is long but it is far from exhaustive. In practice, very few cases are reported to WorkSafeBC or local WCB agency.  This means that the lost wages and medical costs are being wrongly attributed and born to a greater degree by workers and taxpayers.

The direct message of the poster is simple:  Don’t use sick leave for a work-related illness.  The rationale for the message is even stronger and goes beyond considerations of who pays.  Every unreported work-related illness is a missed opportunity to review the circumstances and protect workers and others from harm.

Next time you attend an immunization clinic or have to stay home with sick child, have a thought for the health of educators, staff and caregivers deserving of protection. 

British Columbia Teachers, Federation (BCTF.ca) Occupational Disease Poster (used with permission).

         

Are there systemic barriers to reporting injuries and filing claims?

A worker gets injured in a work-related incident yet there is no record of a work-related injury with the state or federal agency responsible for recording this information.  Unfortunately, this scenario gets played out every day in workplaces everywhere and leads to complaints about “under-reporting.”  Tracing the causes behind the under-reporting can be complex;  some are very personal while others are systemic and should be addressed.

Why is full reporting of work-related injuries important in the first place?  An accurate, timely injury report is an indicator of failures in the safeguards, defenses and barriers in the workplace that prevent hazards from injuring workers.  Training, supervision, adherence to safe work procedures and design are what control the risks associated with any enterprise from shop-floor manufacturing to teaching a college course.  When an injury occurs, it reveals a pathway or trajectory between the hazard and the worker.  The failures may be inherent or active but knowing about them is important is the first step to fixing them.  Failure to report the incident to the responsible agency (OSHA, State OSHA, Provincial Ministry of Labour, WorkSafeBC,  etc.), may place  other workers at risk. 

The failure to attribute a work-related injury to work activity means the healthcare costs for diagnosis, emergency treatment and rehabilitation may be externalized to taxpayer-funded universal healthcare or premium supported medical plans.   That lets the specific industry  that gave rise to the injury off the hook and can drive up premiums and costs of taxpayers and non-occupational medical coverage.  Even if the non-occupational health plan is paid for by the employer, the attribution of work injuries to non-work activity may influence premiums for all participants in private or taxpayer-supported health plans. 

Why would anyone not want to report a work-related injury?   From a worker perspective, particularly if the worker is young, new in the job, or in some form of precarious employment, there may be fear about the consequences of reporting the injury or making a claim.  In some cases, despite real and often quite severe injury, the worker will deny a work connection to a physician or emergency room staff.  I have heard workers say, “getting injured is just part of the job” and unless they are taken away in an ambulance they just shrug it off.  Nurses, doctors, fire fighters, police and corrections officers, and construction workers are among those most susceptible to this line of thinking.  Surveys have found that many workers believe getting injured or developing an occupational disease is just an inevitable consequence of work.   Getting injured is not inevitable or just part of the job, but these sentiments are often perpetuated by workplace culture.

Even well-meaning initiatives can result in suppression of work-related injury reporting.  “Safety incentive programs” that reward groups for injury-free status fall into this category.

Sometimes the systemic barriers are an unintended consequence of procedures designed to make a system fair or more efficient.  Although combining worker and employer reports of injury into one may be seen as a means of streamlining and reducing duplication, it may have the unintended consequence of putting the employer in a heightened power position over a vulnerable worker; the worker may seek to avoid that situation and, as a consequence, the injury goes unreported.  Even features such as filing claims by telephone or over the internet may pose barriers for workers with language or communication challenges. 

Scheme design can also create barriers.  Many knowledgeable commentators are concerned about premium incentives such as experience rating that may contribute to suppression of injury and workers’ compensation reporting.  A rational or unjustified fear of the consequence of injury reports on experience rating may inadvertently encourage managers to “absorb” the cost of work absence and health care due to work-related injury under other leave and care plans.  Every review of an experience rating system should include an examination of its consequences on injury and claim reporting.

Active suppression of injury reporting and worker’ compensation claim filing is prohibited in most jurisdictions.  Beyond the illegality of these actions, they have the consequence of putting others at risk, increasing the cost of work-related injury to the injured worker (family and community), and increasing the costs to other public and private insurance plans—creating an unintentional subsidy to the industry giving rise to the injury.  

Work-related injuries can’t happen here…can they?

One of the biggest barriers to improving health and safety is the belief that work-related injury, disease or death “can’t happen here”.  I’m not saying injuries are an inevitable part of work.  What I am saying is that believing work-related injuries are not possible actually makes it more likely they will occur. 

A teacher commented to me that workplace health and safety really wasn’t an issue where he worked—a high school.  The only health and safety issues he could identify involved the occasional issue in one of the industrial education or foods classes.  “Schools are safe places for students and staff.  Work-related injuries can’t happen here.” 

I agreed that schools are generally safe for students and teachers but hazards and risks of injury are present in every workplace in every sector—including education.   I listed Sandyhook,  Columbine,  Virginia Tech,  and École Polytechnique as high profile examples of a very real risk of  violence in the education sector that has lead to the injury and death of students and workers.   These tragedies tell us about very real risks—risks that have been identified and have led to most schools to perform a risk assessment and develop new procedures.

He conceded that his school now practiced procedures in the case of an intrusion but he put the risk of such an incident right up there with earthquakes and fires:  possible but not probable.   “These are rare events—terrible but rare.  Work-related injuries to teachers, teaching assistants, administrators and other staff in educational settings just don’t happen in day to day work…do they?”

That little bit of doubt provided an opening.  I agreed to check and sent along the following table [data from http://worksafebc.com/publications/reports/statistics_reports/occupational_injuries/default.asp ] :

That’s 10,000 claims for short-term disability or new long-term disability or survivor benefits in British Columbia alone in the last ten years.  Most common injuries were strains and sprains from over exertion or falls on the same level , but hundreds were injuries caused by violence or acts of force including biting, kicking, scratching and hitting. The average age for injured workers in most of these occupations was in the mid 40’s and these injuries were serious enough to cause a work absence.  Getting seriously injured is never “just part of the job” (another widely-held attitude that has to be challenged).   

Injuries can occur in any workplace including schools, colleges and universities.  Work involves risks; complacency and an unfounded belief that “work-related injuries can’t happen here” heighten the probability of injury.  Joint Occupational Safety and Health meetings, safe work procedures, safety plans, new worker safety orientation, ongoing safety training are all part of controlling the apparent and hidden risks in every workplace including all educational settings.

Whether you work in an office, hospital, school or factory, there are ongoing risks to your health and safety.  This is a fact.  It is not meant to scare you.   Unless you believe work-related injuries are possible, that “It really could happen here,” you won’t really engage in the health and safety training, orientation, or practices that make workplaces safer and healthier for everyone. 

How do I know if our Joint Occupational Health and Safety Committee is effective?

The research literature reflects a consensus that effective joint occupational health and safety committees (JOHSCs) make a difference in the workplace.  Just because you have a JOHSC that meets the regulatory requirements, is properly constituted and meets regularly does not guarantee its effectiveness.  How would you assess the effectiveness of your committee? 

A good place to start is with the questions on the Canadian Centre for Occupational Health and Safety (CCOHS) website at http://www.ccohs.ca/oshanswers/hsprograms/hscommittees/effective.html: 

1.       Are members' duties clearly defined?
2.       Is a list of duties available to each member?
3.       Do members understand what their duties are?
4.       Do members carry out their duties?
5.       Is the structure and duties reviewed periodically and revised when necessary?
6.       Do members know the extent of their authority?
7.       Do members exceed their authority [or fail to address health and safety issues within their authority]?
8.       Are the chairperson's duties and authority clearly specified?
9.       Are the secretary's duties clearly specified? 

This is a great starting point in assessing the effectiveness of your JOHSC.  If all members of the JHSC have positive responses to all questions except 7, you have the makings of an effective committee.   I’ve added the clause shown in square brackets to question 7 for a reason.  If there is any doubt in the responses, mixed responses, or if you find question 7 responses depict a committee or its members exceeding their authority or failing to exercise their authority, your committee may not  working as effectively as it could.  In this case, failure to address substantive issues within a committee’s authority may be more serious than overzealousness.  If a committee’s members find they are continually bumping into issues that are beyond their understood authority, there may be something wrong with their understanding or the responsibilities and authority defined for the committee.  In either case, the health and safety of workers and other persons in the workplace may be at stake.  At a minimum, a “yes” answer to question 7 should spark some serious discussion.  

The CCOHS questions (with my proposed amendment to question 7) are internally focused.  A important measure of effectiveness is the degree to which the JOHSC is perceived by management and staff to be an important and potent facet of health and safety in the workplace.   So, I recommend adding the following question to the list:

10.    Do management and staff perceive the JOHSC to be effective?

There are many ways of informing a response to this question.  The methods include:

·         Directly asking managers and staff members the question in a staff survey
·         Counting of issues and questions referred to the committee as a performance measure
·         Tracking the number of page visits to the JOHSC minutes posted to the organization’s intranet site

Each of these or several in combination will provide an indicator of the importance and confidence workplace participants place on their JOHSC. 

If you are just starting a committee or looking for ways to improve its effectiveness,  WorkSafeBC offers a Joint Occupational Health and Safety Committee Foundation Workbook.  The workbook is full of resources and space for committee members to develop and improve the operations of their committee.  

Do Joint Health and Safety Committees make a difference?

A learner in a class discussion I was moderating asked a simple question about Joint Health and Safety Committees:  do they make a difference?

A recent  systematic review summarized the best evidence to date this way:

It can be concluded that there is consensus in the research literature on the value of effective Joint (worker‐employer) Health and Safety Committees (JHSCs). 

Note two important words in that conclusion: “effective” and “joint”. 

I have seen firms argue that they have a health and safety committee because they put health and safety on staff-meeting agendas or ask if there are any health and safety issues after a regular safety meeting.   These are not safety committees.  I have also been told by a firm’s safety officer that their safety committee is joint but all the decisions are actually made when the department heads sit down at their operational meetings.

Real JHSCs are joint, with representation from workers and management.  How many members do you need?  Some jurisdictions spell that out with prescribed numbers of representatives, typically equal numbers of management and labour (often with representatives from each union at a common worksite).   Real JHSCs have empowered representative members with the knowledge, training, and access to information they need to carry out their responsibilities.   

Most jurisdictions mandate the existence of JHSC although the name of the committee, duties of members and provisions for training members may vary.  Joint Health and Safety Committee is the official title in BC, Ontario, New Brunswick, and Yukon.  Alberta,   Northwest Territories, and Nunavut use  Joint Work Site Health and Safety Committee.   Nova Scotia and PEI call them Joint Occupational Health and Safety Committees.   These are the most common variations in committee names.  The names are important if you are trying to access data about requirements or benchmark performance across jurisdictions. 

All Canadian jurisdictions mandate the existence of JHSCs to some degree.  All jurisdictions define the conditions that require JHSCs creation; Alberta is alone in mandating specific work sites to have Joint Work Site Health and Safety Committees by Ministerial Order.  Currently, about two dozen (mostly very large) firms are designated by the Minister.  In reality, however, most medium to large firms voluntarily establish JHSCs because that’s accepted best practices in most industries.

Mandating the existence of a JSHC is not the same as mandating its effectiveness.   A focus on reducing injury rate and days lost may be goals the JSHC can contribute to but measuring effectiveness requires acceptance of a logic mode.  For JSHCs, that model is simply this:  The potential active and passive pathways through which workplace hazards can harm workers can be predicted, detected,  identified and interrupted by appropriate actions, safeguards and defenses.  Leading indicators such as frequency of risk identification (near miss reports, for example), percentage of staff members who access and read JHSC minutes (easy to track on an intranet),  and percentage of JHSC action items completed are a few measures JHSCs have used to gauge their own effectiveness. 

The minutes of a JHSC can be an important means of hazard identification, risk mitigation, and even cultural change.  Only WorkSafe New Brunswick requires committee minutes be submitted to them.  In years gone by, the idea of thousands of committee minutes arriving in a mailroom would dissuade most policy makers from making submission a routine requirement.  In an age where electronic systems are capable of not only receiving and storing large but also reading and validating massive volumes of data, that objection is fading fast; at the same time,  the advantages of electronic submission and analysis of JHSC minutes are growing  Such a data repository could be the next big asset in prevention.   In the meantime, a mandate for submission of committee minutes may provide an impetus to improving their effectiveness. 

So, JHSCs exist or are required to exist in most workplaces and the literature confirms that effective JSHCs are valuable.  As a worker, employer, or JSHC member why not make “improving the effectiveness of our joint health and safety committee” a new year’s resolution?  The evidence suggests having an effective JSHC can and will make a difference.  

Can a toxic workplace harm workers?

Most of us have heard of “toxic” workplaces.  The hallmarks of a toxic workplace typically include discrimination, back-biting, rumor-mongering, obsessive favoritism, repeated harassment, bullying and more.  As a result, workers may experience anxiety, become depressed, take sick leave or leave the company altogether.  Notice, the characteristics of a toxic workplace are all about behavior not intent. Regardless of the intent,  there is now compelling evidence that such behaviors by superiors and co-workers can harm and are harming workers.

Increasingly, workers’ compensation systems are accepting mental or psychological injuries arising from the work environment.  The trend is a natural consequence of research that has shown how stressors in the workplace can increase the risk to the psychological health of workers even in the absence of any physical trauma.  

Workers’ compensation systems have a long history of accepting psychological injury as a consequence of physical trauma.  Post-traumatic Stress Disorder (PTSD) is perhaps the highest profile diagnosis but clinical depression and anxiety are common and can become chronic sequellae to traumatic injury.  A single traumatic event without personal physical injury has also been recognized as creating a risk of psychological injury to workers.  First responders, disaster relief workers, and worker-witnesses to traumatic events are certainly at risk of mental disorders. 

What we now know from the research is that serious psychological harm in the form of mental disorders can occur from a single traumatic event or a cumulative series of significant stressors in multiple work-related events.  While the standard (and onus) of proof required for the acceptance of mental disorder claims varies across jurisdictions (from “causative significance” to “predominant cause”), the recognition of the risk puts an onus on employers and workers to take action to protect workers and stop behaviors like workplace bullying and harassment .  Failure to do so may well constitute a breach of the employer’s general duty to take all reasonable steps in the circumstances to ensure the health and safety of workers.

In BC, changes to the Workers Compensation Act recognized the evidence on mental injuries and the connection to toxic workplace behaviors such as bullying and harassment.  Prior to the changes contained in Bill 14, compensation was payable only where the mental stress was an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.  Under the changes that came into effect on July 1, 2012 “mental disorder” is recognized as a reaction to one or more traumatic events arising out of and in the course of the worker’s employment.    The amendment recognized that a diagnosed mental disorder may arise from a significant work-related stressor or a cumulative series of significant work-related stressors.

It’s more than a year down the road since the effective date in BC.  From published data and presentations we know that 3000 claims have been registered since July 1, 2012.  So far, nearly 500 claims have been allowed while 1400 have been disallowed or rejected and others have been suspended until a worker agrees to be diagnosed by a psychiatrist or psychologist. 

Not every work-related stressor causes a work-related injury.  The pressure of workloads and deadlines, the realities of labour force adjustments and the inevitable changes in job duties are intrinsic to many industries and work environment.  While the Bill 14 amendments prescribes some exclusions (such as discipline, termination and changes in the work to be performed or in working conditions), mental disorders that are a consequence of bullying and harassment are clearly within the scope   of coverage. 

The main objection to inclusion of mental disorders in the scope of coverage and instituting new policies that target bullying and harassment involves intentions.  I’ve heard a few employers say, “It’s not my intention to harass anyone…”, “I like to keep my employees off balance—it makes it easier to manage them” ,  “Sure I am hard on my staff but it is for the benefit of the team—we all win if we meet the deadline”, “I’m not harassing any one person… It’s not harassment if you treat everyone the same.”   Even if you think there might be some merit to any of the intentions, what really matters to workers are the behaviors they observe and experience. 

Behaviors  such as calling an employee in for a meeting without ever telling them in advance why , micromanaging, withholding critical information necessary to do one’s job, and playing one employee off another may be seen as ways to retain power, meet deadlines or exceed production quotas  but are really passive-aggressive behaviors that can increase the toxicity of a workplace.  

Physically beating subordinates is never justifiable to meet deadlines or production quotas; should behaviors that can inflict mental harm be treated any differently?  Clearly, the ends in either case do not justify the means. Behaviors, not intentions, are what workers observe and experience.  Not all the behaviors mentioned here are captured by the formal definition of bullying and harassment, but they are behaviors that can undermine confidence, heighten anxiety, foster depression and contribute to a toxic workplace. 

Not every worker who is bullied or harassed will develop a mental disorder;  that does not mean that the harassment and bullying can go on with impunity.  WorkSafeBC’s policies pursuant to the Occupational Health & Safety Regulation came into effect on November 1, 2013.  The policies define bullying and harassment; more importantly, they explain the duties of workers, employers, and supervisors to prevent and address workplace bullying and harassment.

No regulatory prohibition can eliminate all the characteristics of a toxic workplace.  Eliminating bullying and harassment is a good place to start.