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Workers' compensation insurance (colloquially known as workers' comp in North America or compo in Australia) is a form of insurance that provides compensation medical care for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain." While plans differ between jurisdictions, provision can be made for weekly payments in place of wages (functioning in this case as a form of disability insurance), compensation for economic loss (past and future), reimbursement or payment of medical and like expenses (functioning in this case as a form of health insurance), and benefits payable to the dependents of workers killed during employment (functioning in this case as a form of life insurance). General damages for pain and suffering, and punitive damages for employer negligence, are generally not available in worker compensation plans.
Employees' compensation laws are usually a feature of highly developed industrial societies, implemented after long and hard-fought struggles by trade unions. Supporters of such programs believe they improve working conditions and provide an economic safety net for employees. Conversely, these programs are often criticised for removing or restricting workers' common-law rights (such as suit in tort for negligence) in order to reduce governments' or insurance companies' financial liability. These laws were first enacted in Europe and Oceania, with the United States following shortly thereafter.
- 1 Compensation prior to statutory law
- 2 Statutory compensation law
- 2.1 Statutory compensation in Australia
- 2.2 Workers' compensation in Brazil
- 2.3 Statutory compensation in Canada
- 2.4 Statutory compensation in the United States
- 2.5 Statutory compensation in New York state
- 3 Workers' Compensation Cost Containment
- 4 History
- 5 Workers’ Compensation in Brazil
- 6 See also
- 7 References
- 8 External links
Compensation prior to statutory law[edit | edit source]
Prior to the statutory establishment of workers' compensation, employees who were injured on the job were only able to pursue their employer through civil or tort law. In the United Kingdom, the legal view of employment as a master-servant relationship required employees to prove employer malice or negligence, a high burden for employees to meet. Although employers' liability was unlimited, courts usually ruled in favor of employers, paying little attention to the full losses experienced by workers, including medical costs, lost wages, and loss of future earning capacity.
Statutory compensation law[edit | edit source]
Statutory compensation law provides advantages to employees and employers. A schedule is drawn out to state the amount and forms of compensation to which an employee is entitled, if he/she has sustained the stipulated kinds of injuries. Employers can buy insurance against such occurrences. However, the specific form of the statutory compensation scheme may provide detriments. Statutes often award a set amount based on the types of injury. These payments are based on the ability of the worker to find employment in a partial capacity: a worker who has lost an arm can still find work as a proportion of a fully-able person. This does not account for the difficulty in finding work suiting disability. When employers are required to put injured staff on "light-duties" the employer may simply state that no light duty work exists, and sack the worker as unable to fulfill specified duties. When new forms of workplace injury are discovered, for instance: stress, repetitive strain injury, silicosis; the law often lags behind actual injury and offers no suitable compensation, forcing the employer and employee back to the courts (although in common-law jurisdictions these are usually one-off instances). Finally, caps on the value of disabilities may not reflect the total cost of providing for a disabled worker. The government may legislate the value of total spinal incapacity at far below the amount required to keep a worker in reasonable living conditions for the remainder of his life.
A related issue is that the same physical loss can have a markedly different impact on the earning capacity of individuals in different professions. For instance, the loss of a finger could have a moderate impact on a banker's ability to do his or her job, but the same injury would totally ruin a pianist.
Statutory compensation in Australia[edit | edit source]
As Australia experienced a relatively influential labour movement in the late 19th and early 20th century, statutory compensation was implemented very early in Australia.
Workers' compensation in Brazil[edit | edit source]
The Welfare (called Instituto Nacional do Seguro Social - INSS) is the social insurance for those who contribute. It is a public institution that aims to recognize and grant rights to its policyholders. The amount transferred by the Welfare is used to replace the income of the worker taxpayer, when he loses the ability to work, by sickness, disability, age, death, involuntary unemployment, or even maternity and imprisonment. During the first 15 days worker’s salary is paid by his employers and after that by Welfare, while inability to work lasts. It is up to 75% of the workers’ wages.
The Brazilian Welfare went through several conceptual and structural changes, involving the degree of coverage, the list of benefits and how the system is financed. On the other hand, if workers intend to receive a compensation from their former employer, there is a time limit for filling a claim (2 years), which must be legally supported. Workers’ compensation laws are the same in the whole country and tend to be protective.
Statutory compensation in Canada[edit | edit source]
Workers' compensation was Canada's first social program to be introduced as it was favoured by both workers' groups and employers hoping to avoid lawsuits. The system arose after an inquiry by Ontario Chief Justice William Meredith who outlined a system that workers should be compensated for workplace injuries, but that they must give up their right to sue their employers. It was introduced in the various provinces at different dates Ontario was first in 1915, Manitoba in 1916, British Columbia in 1917. It remains a provincial responsibility and thus the exact rules vary from province to province. In some provinces, such as Ontario's Workplace Safety and Insurance Board, the programme also had a preventative role ensuring workplace safety. In British Columbia, the occupational health and safety mandate is legislated. In most provinces it remains solely concerned with insurance. It is paid by employers based on their payroll, industry sector and history of injuries (or lack thereof) in their workplace, sometimes known as "injury experience".
Statutory compensation in the United States[edit | edit source]
Workers' compensation laws were enacted to reduce the need for litigation, and to mitigate the requirement that injured workers prove their injuries were their employer's "fault". The first state law was passed in Maryland in 1902, and the first law covering federal employees was passed in 1906. By 1949, all states had enacted some kind of workers' compensation regime. Such schemes were originally known as "workman's compensation," but today, most jurisdictions have adopted the term "workers' compensation" as a gender-neutral alternative.
In the United States, most employees who are injured on the job have an absolute right to medical care for that injury, and in many cases, monetary payments to compensate for resulting temporary or permanent disabilities. Most employers are required to subscribe to insurance for workers' compensation, and an employer who does not may have financial penalties imposed. In many states, there are public uninsured employer funds to pay benefits to workers employed by companies who illegally fail to purchase insurance. Insurance policies are available to employers through commercial insurance companies: if the employer is deemed an excessive risk to insure at market rates, it can obtain coverage through an assigned-risk program.
In the vast majority of states, workers' compensation is solely provided by private insurance companies. 12 states operate a state fund (which serves as a model to private insurers and insures state employees), and a handful have state-owned monopolies. To keep the state funds from crowding out private insurers, they are generally required to act as assigned-risk programs or insurers of last resort, and they can only write workers' compensation policies. In contrast, private insurers can turn away the worst risks and can write comprehensive insurance packages covering general liability, natural disasters, and so on. Of the 12 state funds, the largest is California's State Compensation Insurance Fund. The federal government pays its workers' compensation obligations for its own employees through regular appropriations.
It is illegal in most states for an employer to terminate or refuse to hire an employee for having reported a workplace injury or filed a workers' compensation claim. However, it is often not easy to prove discrimination on the basis of the employee's claims history. To abate discrimination of this type, some states have created a "subsequent injury trust fund" which will reimburse insurers for benefits paid to workers who suffer aggravation or recurrence of a compensable injury. It is also suggested that laws should be made to prohibit inclusion of claims history in databases or to make it anonymous. (See privacy laws.)
Employees may not falsely claim benefits. There have been instances where the sub rosa videos recorded by private investigators show employees engaging in sports or other strenuous physical activities, although the employees allegedly suffered disability or injury. [How to reference and link to summary or text]. Such evidence may not be admissible at a trial, if it is found that the taping infringed on the employees' reasonable expectation of privacy.[How to reference and link to summary or text]
Some employers vigorously contest employee claims for workers' compensation payments. In any contested case, or in any case involving serious injury, a lawyer with specific experience in handling workers' compensation claims on behalf of injured workers should be consulted. Laws in many states limit a claimant's legal expenses to a certain fraction of an award; such "contingency fees" are payable only if the recovery is successful. In some states this fee can be as high as 40% or as little as 11% of the monetary award recovered, if any.[How to reference and link to summary or text]
In the vast majority of states, original jurisdiction over workers' compensation disputes has been transferred by statute from the trial courts to special administrative agencies.[How to reference and link to summary or text] Within such agencies, disputes are usually handled informally by administrative law judges. Appeals may be taken to an appeals board and from there into the state court system. However, such appeals are difficult and are regarded skeptically by most state appellate courts, because the point of workers' compensation was to reduce litigation. A few states still allow the employee to initiate a lawsuit in a trial court against the employer. Ohio allows appeals to go before a jury.
Statutory compensation in New York state[edit | edit source]
In March 2007, the state of New York adopted major reforms to its Workers' Compensation law. These reforms included an increase in available temporary disability payments for injured workers with the trade being that lifetime permanent partial disability benefits are no longer available for injuries after July 1, 2008. Unfortunately, as with many systemic changes to broad legal schemes, the reforms have spawned significant litigation to clarify the meaning of many of the changed statutory sections. The Workers' Compensation Board has also attempted to resolve many more cases administratively, meaning that no hearing may be held to resolve a particular dispute, but this change has had unintended consequences. For example, injured workers may not sufficiently understand their rights, since an administrative decision may easily be confused with a proper legal determination (which it may not be). Injured workers should consult an experienced Workers' Compensation attorney since consultation is free (a lawyer in New York cannot charge a fee regarding a Workers' Compensation claim without getting the fee approved by a Workers' Compensation Law Judge). In cities like Rochester, the Workers' Compensation Board has become a central location around which many of the experienced lawyers on both sides have located their offices. Multiple insurance defense firms are located within walking distance, while multiple claimant's firms are located on the second floor of 130 W. Main Street, the building in which hearings are also held.
Alternate forms of statutory compensation in the United States[edit | edit source]
Employees of common carriers by rail have a statutory remedy under the Federal Employers' Liability Act, 45 U.S.C. sec. 51, which provides that a carrier "shall be liable" to an employee who is injured by the negligence of the employer. To enforce his compensation rights, the employee may file suit in United States district court or in a state court. The FELA remedy is based on tort principles of ordinary negligence and differs significantly from most state workers' compensation benefit schedules.
Seafarers employed on United States vessels who are injured because of the owner's or the operator's negligence can sue their employers under the Jones Act, 46 U.S.C. App. 688., essentially a remedy very similar to the FELA one.
Opposition to statutory compensation in the United States[edit | edit source]
Opponents argue that workers' compensation laws may hurt the U.S. workers they were designed to help [How to reference and link to summary or text]. Large employers may have an incentive to move segments of their business -- and their jobs -- to areas where workers' compensation benefits (and other employee protections) are less generous or are harder to obtain. This is because the United States lacks a unified and national set of employee entitlements covering minimum wage, wage and hour, or collective bargaining rights in addition to compensation. Labor unions describe this system as a race to the bottom, as state legislatures cut employee entitlements to attract capital. Moreover, applying laws to citizens (or organisations) abroad, is an exception rather than the rule under common law.
United States employers can also move some operations to other countries where employee entitlements are much lower than in the U.S., and where there may be no workers' compensation or other legal remedies at all for workers who are injured or who are exposed to hazardous substances while on the job. Such countries may also have weaker or no legal protections available for employees in areas such as job discrimination, social security, or the right to organize or to join a trade union. Some small business owners complain that the cost of workers’ compensation, which they pay in the form of insurance premiums, places a heavy burden on them.
Economists who favor the distributism system of economics cite workers' compensation as an example of how far the modern capitalist economic system approaches what they call the "servile state" or "slavery worker" system. They say that in past times, when ownership of the means of production were more widely distributed, it would not be natural to hold an employer responsible for a worker's injury, since the worker was freely choosing to work for that employer. Distributors assert that in modern times, with the vast majority of people dispossessed of the means of production, requiring employers to have workers compensation shows how much workers really are dependent on being employed and are essentially forced to work for someone else to survive. Some distributors who feel that capitalism is heading in the direction of a slavery system feel that this will come about by workers exchanging their personal freedom for economic benefits like workers' compensation.[How to reference and link to summary or text]
Workers' Compensation Cost Containment[edit | edit source]
Many things can be done to reduce the cost of workers' compensation. While many business owners and managers initially think "workers' compensation is the cost of doing business," this is not really true and there are many controls that can be put in place inside a company to make sure an employer pays only for legitimate injuries, from the time an employee is medically unable to return to any productive task at the workplace.
This field of risk management is a specialized niche called "post loss cost containment," "injury management cost reduction," and several other names. The specialty centers around actions an employer can do to "manage" the processes in the workplace immediately after an injury occurs. There are four stages to the workers' comp cost containment process including: assessment & recommendations, design & development, implementation and rollout.
Cost drivers[edit | edit source]
The areas generally considered to be key cost drivers are:
- building management commitment,
- working with the insurance company & insurance adjusters,
- implementing an effective return to work & transitional duty program,
- coordinating medical care,
- medical cost management,
- recognizing fraud and abuse,
- self-interested defense counsel
- improving communication with employees, and
- training supervisors.
Employers should use a "holistic" approach to workers' compensation cost containment by looking at the total problem, rather than focusing only on one area such as reducing medical bills. By taking a "can do" approach, employers focus on controlling procedures within their control rather than the many things they cannot control. For example, employers cannot quickly or easily change the workers' comp laws or eliminate plaintiff's lawyers or the legal system, items that are frequently mentioned as "causes" of high workers' comp costs; however, an employer can implement a "post-injury response procedure" in their own workplace specifying what an employee must do if injured. Employers must "take charge" of those things within their control. Employers should also do after-action reviews (AARs) when an individual claimant's case has cost an extraordinary amount or resulted in extensive litigation to try and determine what went wrong. Often times the biggest driver in costs is a failure to recognize a meritorious claim quickly. Delayed treatment can result in a need for much more extensive treatment and/or the futility of all efforts at healing and eventual return to competitive employment. An injured worker's sense of having been the victim of an unjust litigation process can also lead to increased rates of consequential depression and other mental health conditions which create a complicating "overlay" to an initial physical injury.
Policies[edit | edit source]
Having consistent policies and forms helps the employer remain in control of the process. Even very small companies should have a tight post-injury procedure to help management control the post-injury process. The overall goal is for 95% of injured employees to return to work within 1-4 days after the injury unless they are medically unable to perform any productive role for the employer. The time out of work should be proportionate to the length of the disability. The Average Cost Per Employee in 2006, according to the 2006 RIMS Benchmarking Survey is $618 for all employers combined.
Some documents and policies to use are:
- Transitional Duty Policy
- Work Ability Form
- Transitional Assignment Form
- Post Injury Procedure
- Worst-to-Best Benchmark Performance List
- Employee Brochure
- Introduction Letter to Employees
- Employee Acknowledgement Form
- Physician Telephone Contact Questionnaire
- Supervisors Guide to Workers' Compensation
- General Manager Best Practices
History[edit | edit source]
Workers' Compensation in the U.S. began in 1911 during the Progressive Era when Wisconsin passed the first statutory system. Other U.S. jurisdictions followed suit. In general, statutory Workers' Compensation systems strike a compromise, guaranteeing workers medical care and payment for lost time on a no-fault basis. Prior to the enactment of Workers' Compensation laws, injured workers had to file suit against employers (usually for the tort of negligence), and such legal actions had significant drawbacks for workers. At the same time, a successful suit could impose very large and unpredictable costs on an employer. Statutory Workers' Compensation systems provide for prompt payment of medical, rehabilitation, and lost time costs to injured workers, while placing limits on the cost of the system for employers. This trade-off became known as the "workers' compensation bargain"; that is, the worker traded his/her right to bring a tort suit against their employer in exchange for prompt medical care and disability payments (indemnity payments). Thus workers compensation is the original "Tort Reform."
In many states today, Workers' Compensation represents a major cost of business for employers, and there is ongoing political maneuvering by both business and labor groups to shift the compromise balance struck by Workers' Compensation statutes (for an example see California's Senate Bill (SB) 899). In general, business groups seek to limit the cost of Workers' Compensation coverage, while labor groups seek to increase benefits paid to workers.
For the commercial insurance market, Workers' Compensation represents a major line of business, although one that is sometimes problematic for the insurance industry. Premiums are large, but many insurers find it difficult to turn a profit in many states, as benefit costs sometimes exceed premiums. This line of insurance is regulated fairly closely by most states, although in recent years many states have allowed insurance companies greater flexibility in pricing this line of coverage. The hope has been that by encouraging price competition among insurers for Workers' Compensation insurance, employers would benefit by being able to obtain lower overall premiums. However, the introduction of competitive pricing for Workers' Compensation insurance has also led to significant swings in cost, as the insurance market moves between 'hard' and 'soft' markets. Employers often benefit from lower premiums in 'soft' insurance markets, only to see their premiums increase exponentially during 'hard' insurance markets.
Injured Workers sometimes complain that insurance companies do not treat them fairly or in compliance with the law, while employers often complain about their costs of insurance being driven up by exaggerated or fraudulent claims. Thus, the field engenders a considerable amount of controversy and litigation. These disputed areas include both claims and premium computations.
The statute of limitations for filing a compensation claim for an accidental injury varies from state to state.
Workers’ Compensation in Brazil[edit | edit source]
The Welfare is the social insurance for the person who contributes. It is a public institution that aims to recognize and grant rights to its policyholders. The amount transferred by the Welfare is used to replace the income of the worker taxpayer, when he loses the ability to work, by sickness, disability, age, death, involuntary unemployment, or even maternity and imprisonment.
The Brazilian Welfare went through several conceptual and structural changes, involving the degree of coverage, the list of benefits and how the system is financed.
If one cannot work, his employer pays for the first 15 days and the Welfare pays from the 16th day on, while he is unable to work.
In the other hand, if worker intends to receive a compensation from his former employer, there is a time limit for filling a claim (2 years), which must be legally supported. Workers’ compensation laws are the same in the whole country and tend to be protective.
See also[edit | edit source]
- Compensation of employees
- Disabled personnel
- Injury cover
- List of US Workers' Compensation Insurers
- Living wage
- National Council on Compensation Insurance
- Transferable Skills Analysis
- Work related illnesses
References[edit | edit source]
- See Ohio Rev. Code Section 4123.512.
[edit | edit source]
- California Worker's Comp Executive The Workers' Comp Executive, since 1991, has been and remains the journal of record for the workers' comp industry in California.
- WC 101 - Workers' Compensation 101
- WC Abbreviations- Workers' Compensation Abbreviations
- WC Blog - Workers' Compensation Blog
- Canadian Injured Workers Society
- History of Workers' Compensation in the U.S. by Price Fishback, University of Arizona
- All 50 States' and D.C.'s Home Page and Workers' Compensation
- U.S. Workers' Compensation State Regulations: Clickable Map - U.S. 50 State Regulations, Longshore & Federal Laws
- Workers' Comp Calculator - True Cost of Workers' Compensation Calculator
- Transitional Duty Savings Calculator - Transitional / Modified Duty Savings Calculator
- Social Ministry of Brazil
- Online Guide to WC - Online Guide to Workers Compensation Insurance
- Glossary of WC Terms - Glossary of WC Terms
-  - American Medical Association, Impairment Guidelines for Workers Compensation
Compensation agencies[edit | edit source]
- Association of Workers' Compensation Boards of Canada
- Maryland Workers' Compensation Commission
- Texas Department of Insurance - Division of Workers' Compensation
- South Carolina Workers' Compensation
- Workers' Compensation at the Open Directory Project
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