Workers compensation is irrational and unjust say experts
The lack of correspondence between work-related disability and receipt of workers’ compensation benefits
Many people are disabled by work-related injuries or diseases. A smaller number receive workers’ compensation benefits. In this article, we provide (1) some estimates of the overlap between persons with work-related disabilities and persons who receive workers’ compensation benefits, and (2) some explanations for the lack of correspondence between the two groups. This article provides an introduction to these issues primarily by reviewing existing data and literature, including our own research.
A basic tenet of workers’ compensation programs since their inception is that workers are supposed to receive quick and sure, though limited, payments for work-induced injuries—irrespective of fault by the employer or the worker. In return for expanded financial responsibility for workplace injuries under a no-fault system, employers received immunity from tort litigation, and workers’ compensation benefits specified by statute became the exclusive remedy for injured workers.
While the rules may be understandable to repeat players—particularly insurers and third party administrators of claims—they are obscure to many workers who are caught up in the delays and denials. Some say it is no accident that Franz Kafka worked in a workers’ compensation bureau: the term Kafkaesque is fitting for the experience of many injured workers.
From the beginning, the breadth of the coverage was limited: there have always been exclusions of categories of workers and employers as well as limited coverage of occupational diseases and difficulty in assessing injuries that present complex medical and legal issues. Over the last century, some coverage has expanded. For example, workers’ compensation programs added partial coverage of occupational diseases, some states adopted provisions providing for rehabilitation, and many states increased benefits and coverage in response to The Report of the National Commission on State Workmen’s Compensation Laws [National Commission, 1972]. Between 1972 and 1976, the number of states that required employers to provide workers’ compensation to injured workers grew from 32 to 49, leaving Texas as the only state without compulsory coverage [Robinson et al., 1987]. In contrast, the general trend since the early 1990s has been to restrict coverage. We have written about these developments in the past [Spieler and Burton, 1998; Burton and Spieler, 2001], and we focus our attention on these recent developments in this article.
Injured workers have a broad range of experiences with the workers’ compensation systems. Despite the fact that these systems are complex and difficult to navigate, workers with relatively simple traumatic injuries often qualify for benefits without problem.
These situations include musculoskeletal injuries in which the worker lacks “objective medical evidence”; persistent debilitating pain that cannot easily be medically documented; cancers and diseases that result from multiple causation or cannot be distinguished from diseases outside the workplace; and stress-related disorders. There are also hard fought arguments about recovery periods, appropriate return to work, lingering impairments, partial disability, and “psychological overlay.”
This article attempts to provide an overview of the prevalence of work-related disability, the likelihood that injured workers will receive workers’ compensation benefits, and the barriers to compensation.
In Part I, we provide data on the extent of work-related disability and impairment and the extent to which workers’ compensation programs provide benefits for these conditions. As we discuss, definitional and methodological issues create challenges to the quantification of these issues, but it is clear that many workers suffer from work-related disabilities and that many of these workers do not receive workers’ compensation benefits.
In Part II, we focus on the ways in which disabled workers may find they are included or excluded from the system: first, through specific exclusions of categories of workers or employers; second, through failure of workers to file claims; and third, through a range of more procedural and evidentiary rules that create barriers to receiving compensation.
In Part III, we raise, very briefly, some of the policy questions regarding the mismatch between persons with work-related disabilities and persons who receive workers’ compensation benefits.
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[Dictated and post entered on behalf of WCV]