Does Workers' Compensation need a new "Grand Bargain"?

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.   

What happens when everyone has a workplace accommodation?

In recent online Disability Management course, “Mary” (not her real name) raised this question in one of our online discussions:  “What happens when just about everyone in a department has had an injury or has a residual impairment of some kind and has been accommodated?” 

Far from suggesting this situation would be utopian, she pointed out that it created a very difficult situation.  Each job now had specific, explicit changes to required duties in the job description.  This created dependencies and non-generic or non-standard ways in which a particular employee did their job.  Whenever there was an absence, retirement or even a vacation that created a vacancy, the new employee might still have to carry out the job with the accommodations of the former incumbent in order to maintain the work flow for all the others who had accommodations in that workplace.  

Rather a common job description with duties optimized for the job,  Mary argued, the uniqueness of every accommodation required a complex situation.  A modified set of job duties becomes the de facto job description often involving specialized equipment or procedures designed to meet the abilities and restrictions of the former or usual incumbent.  Mary also noted that each new accommodation had an increasingly greater impact on operations and a higher marginal cost.  So, what happens when everyone in the workplace has an accommodation?

Let me be clear about what accommodation is and is not.  Every workplace should be barrier free and inclusive so that all employees can participate fully.  At some point, even the most inclusive and barrier-free work environment may not allow a particular employee with a disability to participate fully.  It is at this point that accommodation through differential treatment is necessary to overcome the particular barrier for a particular employee with a particular set of capabilities and limitations.

Some workers’ compensation statutes have provisions for mandatory reinstatement.  In most cases, injured workers can return to work and participate equally without accommodation.  When returning to work can’t be achieved because of some barrier then accommodation is required. Collective agreements, human right legislation and other statutes including some workers’ compensation laws impose a “duty to accommodate” on the employer.  The employer’s duty must be discharged to the point of “undue hardship”—a very difficult test to meet.  The barrier is only a barrier because of the particular nature of the worker’s residual impairment with respect to a particular job task or set of tasks.  If the worker can carry out the usual task in a dignified and efficient way, then no accommodation is needed.  Accommodation really refers to the alterations to the workplace or job tasks that allow the particular worker to participate. 

Take the case of a worker unable to walk up stairs to deliver work product from one location to another.  If this is an essential job requirement, the worker is incapable of doing the job without some accommodation.  The employer has a duty to accommodate up to the point of undue hardship.  If the particular individual must carry out this essential task, the employer may consider accommodations like installing a designated stairway elevator for the individual.  That would be a classic accommodation: an individualized approach to remove a specific barrier.

Over time, the number of workplace accommodations put in place can increase because more people have been accommodated.  None of the accommodations may impose an undue hardship on the employer.  To Mary’s point, it is indeed possible that many or all persons in a particular workplace have accommodations and the challenges Mary points out are real.  Those challenges may actually work against the ambitions and career aspirations of employees with accommodation.  For example, why would an employer even consider an accommodated staff member to take on a temporary training role (not requiring any accommodation) if doing so creates a recruitment headache?

When accommodated positions dominate a workplace, here is a short list of actions to consider:

1. Make certain restrictions are properly understood, relevant,  and current.  Many conditions change over time and people learn to work in ways that don't make their permanent impairments disabling with respect to required job tasks.  Conditions, even permanent impairments, may become less restrictive over time as the body and mind adapt.
2. Have a current, accurate process description and job-task analysis.  Jobs, process and tasks change over time.  Technology and new materials are constantly altering the very nature of particular jobs.  A traditional job analysis may reveal that the requirements of a particular position are no longer restrictive.  In the staircase example, the duty to accommodate disappears if the requirement to climb stairs disappears from the required process.
3.  Examine current work processes to determine truly required tasks.  Adherents to Total Quality Management, LEAN, Six Sigma, and Business Process Re-engineering recognize the value of this sort of analysis.  The results often reveal tasks that can be eliminated, addressed by new technology, or combined into simpler clusters.  Eliminate a task that imposes a barrier to some and you eliminate the need for accommodation.   In the stairway example, a redesign of operations may co-locate two departments on one floor thus eliminating the required task. 
4. Review the required tasks and the abilities collectively.  Ad hoc accommodations made over time may conflict and create unnecessary requirements.  Having a current, well documented list of required tasks in processes and current list of abilities (and restrictions) of staff members may allow assignment without the need for formal accommodation.  
5. Change restricting processes and tasks.  If a required process has an inherently difficult, barrier-generating task, rather than thinking about individual accommodation, consider alternatives that lessen or remove the barrier entirely.  An ergonometric consultation may generate systemic as well as individual solutions.  In the stairway example, a public elevator would eliminate the restrictive process and make the workplace more accessible for everyone.
6. Up-skill your staff.  If a person has a restriction that is significant in their current position, identify other positions where the impairment doesn't necessitate an accommodation.  We often neglect to look to more senior positions but, with some training and mentoring, a person with restrictions in a current job may be able to advance to one where any restrictions imposed by the impairment are irrelevant. Up-skilling may also allow incumbents with accommodations to become proficient with technology that can lessen or reduce the effect of any handicap.
7.  Group restrictive tasks into one job…  (And hire appropriately for that).  If several employees have similar restrictions, there may be an opportunity to eliminate the need for accommodation by combining the relevant tasks into one job and recruit appropriately for that position. 
8. Develop career paths with related departments, suppliers and customers.  This may seem counter-intuitive but your challenge may be similar to the challenges of others in your industry supply chain and customer base.  The collective employee set is likely to have overlapping skill and knowledge bases with differing physical (and mental) requirements.  By developing relationships to increase new career opportunities, your department, your trading partners and  employees in both may all be better off. 
9. Create different roles or new jobs that make sense for your company.  Managers or supervisors may be doing tasks that you can be devolved and grouped into a new job.  I love the example from healthcare where a senior nurse with physical impairments was able to take on many of the orientation and mentoring tasks of several supervisors.    
10.  Foster staff resilience, mobility and flexibility.  People can and do change.  They learn, have changing aspirations, and even change jobs and careers.  Often they need some help to do these things.  Companies that have staff education and development programs create opportunities both inside and outside the firm for their staff. 

By the way, accommodated staff needs to be included in most of these actions.  They are likely to have important insights and may generate some of the best ideas.  After all, they live with their impairments and may well have discovered ways of living with off the job that can apply on the job.  

None of this is to suggest there is anything wrong with the duty to accommodate.  On the contrary, it is an important and fundamental part of social justice and corporate social responsibility.   It is the morally (and often legally) right thing to do.  However, rather than a sign of progressiveness and flexibility, a high prevalence of formal accommodations in a department may indicate rigidity, stagnation and a lack of imagination.  These actions may provide a starting point in developing new ways to meet both the needs of persons with disabilities and the objectives of the organizations that employ them.   

Does compliance with the National Commission's Temporary Disability Compensation Recommendations matter?

In the last three posts to this blog I have recapped the National Commission on State Workmen’s Compensation Laws (1972) recommendations regarding short-term work-related disability (Temporary Total Disability).  The National Commission under its Chairman, John F. Burton, Jr. recommended compensation with a waiting period of not more than three days with a retroactive period of not more than 14 days, a compensation rate moving to at  least 80% of spendable earnings , and a maximum compensation amount equal to twice the state average weekly wage. 

The last three posts examine the progress towards meeting these recommendations.   Although the National Commission only examined US state laws, its recommendations are referenced internationally in the development of jurisdictional workers’ compensation provisions and the National Commission report remains the one document to make specific minimum recommendations for the equitable sharing of losses between workers and employers due to work-related injury and disease in the US.  The National Commission’s recommendations set the minimum standard for that distribution.  Sadly, only one US state and seven Canadian provinces come close to meeting the all of the provisions noted above.  The accompanying table combines the ratings against the National Commission's recommendations.  Jurisdictions with high compliance (assessed as meeting at least two of the recommendations) are highlighted in yellow; low-compliance states (assessed as meeting one or none of the recommendations) are not highlighted. 

While Iowa was the only US state to meet all the recommendations assessed in this comparison, it should be noted that another 10 came close, meeting or exceeding the recommendations of at least two of the assessed categories (high compliance, for the purposes of this discussion). 

Why does compliance with the National Commission recommendations matter?  Increasingly I am asked to compare the provisions of various workers’ compensation systems.  Sometimes this is part of a policy review but many contracts and trade agreements now stipulate the equivalency of protections for workers.   I can confidently say that workers in most Canadian provinces and Iowa have equivalent protection for work-related losses associated with temporary disability.  I can also say with confidence that workers in an additional 10 states and the remaining provinces have temporary disability compensation protections that meet at least two of the key National Commission recommendations on TD coverage.

I am also asked to compare specific jurisdictions and to comment on the comparisons done by others.  Compliance with the National Commission recommendations is a useful contextual lens in which to view comparisons.  For example, WCRI’s well known CompScope™ product is often used as a comparative and benchmarking tool.  Take the following table, for example. 

Now note the same table highlighting states with high compliance to the National Commission recommendations. This perspective provides a new way of interpreting this table. 

One would expect that compliance with the National Commission's recommendations on temporary total disability compensation would translate into higher costs for the insurers and that these costs might also be reflected in higher premiums.  Similarly, the worker self-insured portion of losses not covered by workers’ compensation will be lower (waiting periods not reimbursed, spendable income losses not compensated, uninsured earnings above maximum compensation).  Unfortunately, there is no comprehensive ranking from the worker perspective.  From the employer perspective, however, there is the Oregon Workers’ Compensation Premium Rate Ranking study.  While this study is based on Oregon industrial mix and costs, highlighting the states with high compliance with the National Commission  TD recommendations provides new insights into the ranking. 

Suddenly, Iowa in the middle of the list stands out.  It complies with all the recommendations as assessed in this review. High-compliance states are clustered in the top half of the ranking.  Suddenly,  ranking for high-cost  / low compliance states (meeting only one or none of the recommendations) like California look much worse while the costs for high compliance states like Washington look less severe.   Oregon’s ranking as a high-compliance, low-cost state looks even better.  In a listing of high compliance states, it is well below others.  Even if you add back the costs paid by workers and employers into the Oregon Worker Benefit Fund, Oregon is still the lowest of the high compliant states. 

Now, there may be lots of other reasons why some low compliance states have high costs.  They may pay much more for administration, provide larger payments for permanent disability, or have much higher medical and legal costs, for example.  Those comparisons are not possible with the data I have but would be clearly worthwhile. 

What this assessment does say is that the horizontal equity objective of the National Commission’s temporary disability recommendations has not been achieved.  Workers with work-related total temporary disability in 80% of US states are not getting the minimum temporary disability compensation coverage recommended by the National Commission.   Workers in low-compliance states are bearing a much greater share of the cost of work-related injury than those in high-compliance states.

Forty years on, the National Commission’s conclusion sadly remains little changed: 

… We also agree that the protection furnished by workmen's compensation to American workers presently is, in general, inadequate and inequitable. Significant improvements in workmen's compensation are necessary if the program is to fulfill its potential.

States and provinces in high compliance with the National Commission recommendations have proven that a more equitable sharing of the costs of work-related injury, illness and disease is possible.  Let's hope by the fiftieth anniversary of the National Commission report, all jurisdictions will achieve full compliance with its temporary disability recommendations.
 

What should be the Maximum Temporary Disability level under Workers’ Compensation?

Workers’ compensation costs for temporary disability are a function of:

• The compensation rate (66 2/3rds% of gross, 90% of net spendable)
• Waiting periods (none, 3 days, 2/5ths of a week) and retroactive periods (none, two weeks, four weeks)
• Maximum compensation value  

The National Commission on State Workmen’s Compensation Laws (1972) set out what ought to be the standard for each of these measures.  In my previous posts, I have evaluated each US state and Canadian province against the National Commission’s recommendations regarding compensation rate and waiting periods/retroactive periods.  This time, I examine the recommendation regarding weekly maximum compensation for temporary disability.

The National Commission recommended:

We recommend progressive increases in the maximum weekly wage benefit, according to a time schedule stipulated in Chapter 3, so that by 1981 the maximum in each State would be at least 200 percent of the State's average weekly wage. [Emphasis added]

To be clear, the recommendation was just that, a recommendation.  Each jurisdiction must evaluate their response in accordance with their own priorities and circumstances. But we are thirty plus years from the aspirational deadline set by the National Commission.  It is time to evaluate what progress has been made towards its recommendation.

To evaluate progress, I took the 2012 maximums for each state and province from the IAIABC/WCRI Workers’ Compensation State Laws and AWCBC data that either stated the maximum directly or allowed it to be calculated based on maximum assessable or insurable earnings and the compensation rate.  I then used the BLS average (mean) annual earnings from their May 2013 published data, converted this to a weekly amount and multiplied by two to get a recent quantification of the National Commission goal that the maximum benefit equal  200% of state average weekly wage.  I used Statistics Canada data for average weekly wages (including overtime) for 2013.

Finally, I calculated how much the maximum compensation for temporary disability compensation has progressed toward the Nation Commission total.  I arbitrarily set a standard of 50% toward the National Commission “at least 200%” recommendation as having met the spirit of the recommendation.

How did the states and provinces measure up?  Only 17 states  and all but two Canadian provinces exceed the 50% threshold towards the National Commission recommended level of at least 200% of the state average weekly wage.  

Again, this is not about benefit adequacy.  This is about the equity in how the earnings losses due to work-related injury are shared.

There are two insurers:  the employer and the employee.  The employer transfers the risk of his share of the losses due to workplace injury to the insurer for the price of the premium and, by virtue of the exclusive remedy, is protected from suit for losses beyond those covered by the workers’ compensation insurance.  The other part of the earnings loss is self-insured by the worker.  The worker bears the physical and mental impact of the loss and the share of the earnings loss not covered by the workers’ compensation insurer.

The policy equity questions here are two-fold:

• How much of the financial loss should each insurer bear?  
• What is equitable (not adequate) compensation relative to what workers traded off in the “grand bargain” or “historic compromise” that created workers’ compensation?

A low maximum shifts a greater portion upon the worker.   What this analysis shows is two things:

• Meeting the recommendations of the National Commission is achievable as evidenced by the states and provinces that have met and exceeded the recommendations.  
• Many states and a couple of provinces have compensation levels that fall far short of the National Commission standard—a situation that may fundamentally undermine the foundations of the historic compromise that is workers’ compensation.  

What percentage of earnings should be replaced by temporary disability benefits?

Workers’ compensation levels for temporary disability are of critical importance to workers and their families.  Any discussions I’ve read recently are around “benefit adequacy” of temporary disability benefits.  This is, of course, critically important but misses some important points.

Workers’ suffer from work-related injuries.  No one can share the physical and psychological pain.  Workers’ compensation is intended to offset the financial impact in terms of lost wages.  In addition to the pain and suffering of the work-related injury, workers must also bear the earnings lost that are not compensated by workers’ compensation temporary disability payments.  As with uncompensated waiting periods and earnings above the maximum insurable, workers are self-insured for the difference between what they lose in wages and what they get in compensation.

The obvious benefit adequacy argument characterizes the loss as a worker deductible.  It also shifts the cost of work-related injury from employer to worker.  The lower the cost to the employer, the less the incentive to invest in worker safety and return-to-work initiatives.  Workers’ compensation costs are part of the prevention feedback mechanism.  The historic trade-off that made workers’ compensation the exclusive remedy envisioned that costs of workplace injury would not unduly shift costs as well as the burden of injury upon the worker.  

How much of the worker’s loss should be compensated?  The National Commission on State Workmen’s Compensation Laws (July 1972) said the following:

We recommend that cash benefits for temporary total disability be at least two-thirds of the worker's gross weekly wage. The two-thirds formulation should be used only on a transitional basis until the State adopts a provision making payments at least 80 percent of the worker's spendable weekly earnings. (See R3.6 and R3.7)  [Emphasis added]

Here we are more than four decades after Professor Burton’s authoritative and comprehensive report and the fact is only 10 US state have made progress toward meeting this recommendation.  By contrast, all Canadian jurisdictions could be assessed as having met the recommendation with the majority exceeding the “at least 80% of net” standard set out in the report’s recommendation. [see accompanying table]

Beyond the benefit-adequacy argument, the financial costs of work-related injury being borne by workers are real and measurable cost.  Workers and their families bear other costs and there can be debates about what estimates of those ought to include.  Temporary Disability losses are easily quantifiable into the portion covered by workers’ compensation insurance and the portion self-insured by the workers themselves.  

If the work at least 80% of that loss.  Clearly a handful of US states and most Canadian jurisdictions have found ways to meet this standard.  Doing so may be fundamental to preserving workers’ compensation as the essential social insurance program it has become in the world today.

Who insures short-duration work-injury caused absences?

Most people would say, “work-related injuries that result in workers losing time and earnings are covered by workers’ compensation”.  In most Canadian provinces, that statement would be true.  In three Canadian provinces (PEI, NB and NS) and all US states, short-duration time-loss claims may receive no compensation under workers’ compensation statutes currently in force.  In all but seventeen states, most injured workers with less than two weeks of missed work due to their injuries will never receive compensation for an initial waiting period of three to seven days.

For these shorter-duration work-injury or illness caused absences, the worker is essentially self-insured for the waiting period.  From a workers’ compensation insurer perspective, these claims may have minor costs for health care but are essentially costless in terms of compensation for temporary disability resulting in lost wages.  I can find no jurisdiction with a waiting period that publicly quantifies either the number of cases where a waiting period was served or the value of uncompensated lost wages being borne by injured workers who miss more than the day of injury.

Without data, it is hard to estimate the number of work-related absence cases that are going uncompensated because of waiting periods.   Without measurement, it is hard to see if this burden is shrinking or growing.  Without a financial implication, the case for prevention may be less than it might otherwise be. 

Jurisdictions such as British Columbia that compensate for time lost beyond the day of injury may provide an indirect indication of what is not being compensated in jurisdictions with waiting periods.   Using WorkSafeBC claims originating with injuries in 2010 and considering all the days paid through to October 2014, approximately 23% of work injury claims were compensated for 1 to 3 days.  Using a one-week measure, about 36.5% of claims received compensation for one week or less. Almost half the claims show a worker with temporary disability of two weeks or less; nearly 60% of these 2010 injured workers  have three weeks or less  lost due to work-related injury.   If a similar distribution of work-related injury absences applies in the US, then about half of work-related injuries involving time-loss are at least partly insured by injured workers themselves. 

These shorter duration time-loss claims provide critical data on the causes and nature of injuries (data that are not typically collected if no wage-loss compensation is paid).  These data can inform prevention activities and public policy that will reduce future incidents.  More importantly, the compensation for wages lost not only lessen the burden the injury imposes on the worker but also creates an incentive toward prevention of all injuries and not just the most costly ones.  This is critically important because the difference between a multi-million dollar claim and one involving just a day or two of wage loss is often a matter of millimeters. 

From the perspective of the insurer, the shorter duration claims are the least costly; from the perspective of the injured worker, three days or a week of lost wages is a significant cost.   Collectively, workers with short-duration, unreimbursed time-loss claims may well be self-insuring a material portion of the cost of workplace injuries.  That burden should be quantified and included in the calculation of the cost and consequences of work-related injury, illness and disease.

Why is there a waiting period for workers' compensation?

Many workers’ compensation jurisdictions have a “waiting period” for workers’ compensation.  This is a form of “deductible” whereby the worker absorbs the initial financial impact of wages lost due to a work-related injury.  Most jurisdictions with a waiting period also have a “retroactive period”; if a claim extends to or beyond the retroactive period, workers’ compensation for temporary disability during the waiting period is compensated.  There are also a number of jurisdictions that “waive” or “exempt” certain injuries or occupations from waiting periods. 

Waiting periods are not universal.  They are absent from most workers’ compensation systems in Australia and Canada.  In the US, waiting periods are common.  When John Burton wrote the National Commission on State Workers’ Compensation Laws (Washington, DC July 1972), he summarized the rationale for waiting periods and recommended the upper limits for waiting periods and retroactive provisions.  Specifically, the report’s Introduction and Summary notes on page 18:

Waiting period [Section 27(d)( 1 )(H) ] . Recommendations published by the Department of Labor propose a 3 day waiting period and a 14 day retroactive period. In contrast, the Model Act of the Council of State Governments specifies a 7 day waiting period and a 28 day retroactive period. Most States meet the standard of the Model Act, but do not meet the Department of Labor recommendation. Although the Model Act would provide benefits for 83 percent of lost time, the U.S. Department of Labor standard would compensate for 93 percent. The purpose of the waiting and retroactive provisions are to reduce payments for truly minor incidents and to assure benefits for even moderately serious injuries.

 We recommend that the waiting period be no more than 3 days and that the retroactive period be no more than 14 days. (See R3.5)

 

Using the National Commission recommendation as a basis for judgement, only 17 of 51 US jurisdictions would meet or exceed the recommendation regarding the length of the waiting period and retroactive period; all twelve Canadian jurisdictions would meet the waiting period recommendation but three would fail to meet the recommended retroactive upper limit.  The accompanying table reports the waiting period and retroactive period provisions in the US and Canada and assesses these against the National Commission’s recommendation. 

Interestingly, back in 1916 when British Columbia was considering its entry into workers’ compensation, the committee of the legislature (under Avard Pineo), the waiting period was avidly discussed.  The BC committee opted for a 3 day waiting period based on the following reasoning: 

We think that a waiting period of three days applicable in all cases will be adequate to accomplish any proper purpose sought by those who advocate the necessity of a waiting period, but will not be found to seriously inconvenience the injured workman, especially as he is during this period provided with full and adequate medical aid.http://www.worksafebc.com/publications/reports/historical_reports/pineo_report/default.asp

While the trade-off in 1916 was a three-day waiting period for the best medical aid provision in workers’ compensation at the time, many critics felt the burden of the waiting period was still considerable. The three day waiting period would be supported by three Royal Commissions in BC (Sloan 1942, Sloan 1952, and Tysoe 1966).  In the 1966 Royal Commission in British Columbia, Justice Tysoe sided with the business community and recommended continuation of the three day waiting period because of a fear of the financial impact on business if it were eliminated.  The government adopted that recommendation but in 1972, in the lead up to an election, the government of the day eliminated the waiting period.  

The most recent Royal Commission in British Columbia (1999) closely examined waiting periods.  It heard a number of reasons why a waiting period might be considered.  Reducing employer costs was one but concerns over “moral hazard” and high administrative costs were also noted.  The Royal Commission concluded:

Waiting periods do not reduce the costs of workplace injuries unless legislation and policies promote conduct by employers and workers that results in a real reduction in the number of injuries and illnesses, or a reduction in frivolous claims which would otherwise have occupied adjudicators’ time. If real costs are not being reduced, then waiting periods are simply a means for shifting costs away from the workers’ compensation system and onto individual workers, employers, or both.

The commission does not consider the latter an appropriate objective or result. The commission’s examination of the limited empirical evidence on waiting periods leads to the conclusion that any cost savings associated with waiting periods due to reductions in claims volume may well be more than offset by increases in the average costs of the remaining compensation claims, due to the extension of work absences beyond the waiting period (or beyond the retroactive period if one is introduced). 

Therefore, the commission sees no compelling reason to extend the current waiting period [the day following the day of injury], and in fact is of the view that injured workers should not be unfairly or unnecessarily denied compensation for losses caused by work-related injury.

Royal Commission on Workers’ Compensation in British Columbia Volume II Chapter 1 http://www.wcat.bc.ca/research/WorkSafeBC/WSBC_Hist_Rpt/1999-rc-report-2.pdf

There may be reasons why a state or province has a waiting period (and retroactive period) in its legislation.  The reasons, however, should be explicit and supported by research.  If the reasons are economic, then the economic magnitude of the policy should be measured.  I can find no current estimate of the “co-pay” or “deductible” portion of workers’ compensation born by workers who must serve an unrecompensed waiting period. 

If the reason for a waiting period provision is to discourage “frivolous claims”, then the central premise behind the argument is questionable.  Is any work-related injury “frivolous”?  Frivolous is a subjective judgement and hard to test from a research perspective.  All work injuries are serious and important in revealing failures in the barriers, safeguards and defenses that would protect workers from harm. 

There are other important questions that need to be examined.  Does the presence of a waiting period influence reporting of work-related injuries?  Is the duration of work-related injury disability influenced by the presence or absence of a waiting period?  What impact, if any, does the length of a waiting period and retroactive period have on recovery outcomes, worker satisfaction, or appeal activity?

Workers already must bear the human cost of work-related injury.  Quantifying the additional economic burden and other impacts of waiting periods and retroactive provisions should be on the research agenda.